Dr Kate Barry v Upper Thames Medical Group and Others [2025] EAT 146

Dr Barry, a GP suffering from myasthenia gravis, resigned after her employer stopped her sick pay. The EAT held the tribunal erred in finding she had affirmed her contract by delaying resignation whilst negotiating, and substituted a finding of unfair constructive dismissal.

Facts

The claimant, Dr Kate Barry, was a general practitioner whose continuous NHS service began in April 2006. She commenced employment with the respondents, a partnership of NHS GPs, on 16 April 2018. In February 2019, she contracted laryngitis and subsequently developed profound fatigue, eventually being diagnosed with an autoimmune disorder, myasthenia gravis. She had numerous periods of sickness absence.

Following a capability meeting on 10 August 2020, the claimant suffered a relapse and was absent from 24 August 2020 until 26 December 2020. On 28 August 2020, the respondents ceased paying sick pay, having paid it for approximately 17 months. The claimant, assisted by her trade union representative, disputed this. As late as 16 February 2021, the practice manager indicated the claimant was owed over £9,000 in sick pay. On 26 March 2021, the senior partner confirmed no further sick pay would be paid. The claimant resigned on 6 April 2021.

The Employment Tribunal found that the cessation of sick pay was a repudiatory breach of an express contractual term and that, but for affirmation, the claimant would have been unfairly constructively dismissed. However, it held that the claimant had affirmed the contract.

Issues

The principal issue was whether the Employment Tribunal erred in law in concluding that the claimant had affirmed her contract of employment before resigning in response to the respondent’s repudiatory breach. The appeal proceeded on three grounds: (1) perversity arising from inconsistent findings concerning the claimant’s willingness to return to work; (2) the relevance of trade union representation to affirmation; and (3) whether, stripped of those factors, the tribunal had relied impermissibly on delay alone.

Arguments

The claimant argued that significant factors weighed against affirmation: she received no pay (other than holiday pay) after 24 August 2020; she performed no work after being told sick pay was withheld; and she was in ongoing dispute with the respondents, including without prejudice communications, indicating she was reserving her position. The claimant also pointed to her ill-health until 26 December 2020 and the respondents’ temporary acceptance on 16 February 2021 that some sick pay was owed.

The respondents contended that the long delay between September 2020 (when the claimant first knew sick pay would not be paid) and April 2021 amounted to affirmation, and that her stated readiness to return to work as of 26 December 2020 evidenced affirmation.

Judgment

HHJ James Taylor allowed the appeal. The judge began by emphasising that affirmation is fundamentally about communication, whether by word or deed, and reviewed the leading authorities, including W. E. Cox Toner (International) Ltd v Crook [1981] ICR 823, Chindove v William Morrisons Supermarket Plc, and Leaney v Loughborough University [2023] EAT 155. The judge noted that mere delay does not constitute affirmation unless accompanied by express or implied affirmation, and that an innocent party who continues partial performance whilst seeking to allow the guilty party to remedy the breach does not necessarily affirm.

The judge cited with approval the principle drawn from Yukong Line Ltd of Korea v Rendsburg Investments Corporation of Liberia [1996] 2 LR 604:

The law does not require an injured party to snatch at a repudiation, and he does not automatically lose his right to treat the contract as discharged merely by calling on the other to reconsider his position and recognise his obligations.

Applying these principles, the judge found that the Employment Tribunal had identified numerous factors pointing against affirmation but had failed properly to weigh them. The factors the tribunal relied upon to find affirmation were limited and flawed:

The delay finding

The tribunal’s reliance on the delay between September 2020 and April 2021 failed to take into account the ongoing discussions between the parties and the fact that, as late as 16 February 2021, the claimant had been informed she was owed over £9,000 in sick pay. This was a highly relevant factor that the tribunal conspicuously failed to consider.

The trade union representation

Insofar as the tribunal treated the claimant being assisted by her trade union representative as supporting affirmation, this was an error: such assistance pointed against affirmation, since the union was asserting the claimant’s contractual rights.

Willingness to return to work

The tribunal’s finding that the claimant was ready and wanted to return to work from 26 December 2020 contradicted its earlier finding (at paragraph 100) that she was not prepared to return until the sick pay dispute was resolved. This inconsistency was not addressed.

Applying Jafri v Lincoln College [2014] IRLR 544, the judge concluded there was only one possible answer: the claimant had not affirmed her contract. As the tribunal’s alternative finding that the dismissal would otherwise have been unfair was unchallenged, a finding of unfair dismissal was substituted, with remedy remitted to the same Employment Tribunal.

Implications

The judgment reinforces the established principle that affirmation of an employment contract is a matter of communication, by word or deed, rather than mere passage of time. It confirms that tribunals must take a contextual approach and should be slow to find affirmation where an employee, faced with a repudiatory breach, delays resignation whilst genuinely attempting to persuade the employer to remedy the breach.

The decision is particularly significant in clarifying that:

• Active engagement with grievance or negotiation processes, including through a trade union representative, generally points against affirmation rather than in favour of it;
• The acceptance of limited contractual benefits (such as holiday pay) during ongoing dispute resolution does not necessarily amount to affirmation;
• Periods of sickness absence, during which the employee is not actively performing the contract, carry less weight as evidence of affirmation;
• Tribunals must reconcile inconsistent factual findings when applying the law of affirmation.

The decision matters to employees facing repudiatory breaches who wish to attempt remedy before resigning, and to practitioners advising on the timing of resignation in constructive dismissal cases. It guards against an over-mechanical application of delay as decisive and recognises the practical reality that resignation is a significant decision often requiring time and negotiation. The limits of the decision are clear: it does not abolish the doctrine of affirmation, and prolonged delay accompanied by conduct consistent only with the contract continuing may still amount to affirmation. The outcome turned on the specific factual matrix and the tribunal’s failure to weigh material factors.

Verdict: Appeal allowed. The EAT substituted a finding that the claimant was unfairly (constructively) dismissed, holding that the Employment Tribunal had erred in law in concluding she had affirmed her contract. The matter was remitted to the same Employment Tribunal to determine remedy.

Source: Dr Kate Barry v Upper Thames Medical Group and Others [2025] EAT 146