And speaking of murky waters brings me to the confusing case of Kinch v Compassion in World Farming 2025, in which the Employment Appeal Tribunal set aside the Employment Tribunal’s  decision to strike out a constructive unfair dismissal claim

Mrs Kinch was employed as UK Financial Controller by the employer from June 2016. In June 2022, Mrs Kinch submitted a flexible working request to work remotely full time due to personal circumstances. The request was rejected, and Mrs Kinch subsequently appealed the decision which was also rejected.

On 26 August 2022, during a conversation with the Global HR Manager, Mrs Kinch was asked to return to the office two days a week or face “a sticky end”. Mrs Kinch decided to resign on 30 August by giving three months’ notice, which was longer than her contractual notice period of one month. She provided this period of notice to facilitate a smooth handover and provide support to the team. This was agreed and accepted by the employer.  It was also mutually agreed that Mrs Kinch would serve her notice while working remotely and this arrangement extended until April 2023 where Mrs Kinch continued her employment.

During this notice period, Mrs Kinch requested the employer pay her occupational sick pay. She also submitted a grievance about the rejected flexible working request.

Mrs Kinch’s employment terminated in April 2023, after several more extensions to her notice period. Following her termination, Mrs Kinch brought a claim of constructive unfair dismissal. She claimed that the rejection of her flexible working request, and the HR Manager’s “sticky end” comment breached the implied duty of trust and confidence. The employer argued that no repudiatory breach of contract was committed, but even if there had been a breach of contract, Mrs Kinch had affirmed the contract by her:

- Continued employment for a further eight months after her resignation;

- Engagement with the employer’s grievance procedure;

- Requesting the employer exercise its discretion and pay her occupational sick pay.

On this basis, the employer applied to the ET to have her constructive unfair dismissal claim struck out, arguing that Mrs Kinch had no reasonable prospect of success.

The ET accepted the employer’s application to strike out the claim without holding a full hearing. The judge concluded that Mrs Kinch had affirmed the contract by extending her notice period following her resignation and struck out the claim.

Mrs Kinch appealed to the EAT, arguing that the ET had wrongly relied on disputed facts and failed to properly consider the full context of the claim.

The EAT held that the ET erred in law in striking out the claim and overturned the ET’s decision. The EAT held that the ET were wrong to proceed, without evidential basis, that it was an undisputed fact the extensions to the notice periods were initiated entirely by Mrs Kinch and for her benefit only and further held, that the claim could not be properly struck out without a hearing.

The EAT set aside the ET’s decision and remitted the case to a different tribunal to hear the evidence and the circumstances of the notice periods.

This case highlights several important principles for both employers and employees navigating potential constructive unfair dismissal claims. An employee may still pursue a claim for constructive unfair dismissal even if they choose to work their notice period rather than resigning immediately. Continuing to work does not automatically mean the employee has affirmed the contract. It is important to remember that affirmation is context-dependent and influenced by the reasons and circumstances behind any notice period extension(s).

Employers should be particularly mindful of the need for accurate and timely documentation. Keeping clear records of who requested any extension and why it was requested can be crucial in defending against future claims. Ultimately, tribunals will assess each case holistically, considering the full context, including both parties’ actions and intentions throughout the notice period, rather than relying solely on whether work continues.