Appeal No.	 EAT/1138/02/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	                On 20 June 2003
Judgment delivered on 26 September 2003

Before
THE HONOURABLE MRS JUSTICE COX DBE
MR C EDWARDS
MR B M WARMAN

THE GOVERNING BODY OF ST EDMUND OF CANTERBURY
CATHOLIC HIGH SCHOOL	APPELLANT

ANN HINES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RICHARD BRADLEY
(of Counsel)
Instructed by:
Messrs Mace & Jones
Solicitors
Drury House
19 Water Street
Liverpool L2 ORP	
For the Respondent	MR PETER EDWARDS
(of Counsel)
Instructed by:
Association of Teachers & Lecturers
Legal Services Department
7 Northumberland Street
London WC2N 5DA	

THE HONOURABLE MRS JUSTICE COX DBE

1	This is an appeal from the decision of an Employment Tribunal sitting at Liverpool, promulgated on 2nd September 2002, upholding the Applicant’s complaint of constructive unfair dismissal.  The Applicant (the Respondent to this appeal), a qualified teacher in special educational needs, was employed as the head of the special needs department at the Appellant school.  She resigned from her employment on 30th March 2000 and complained of constructive unfair dismissal.  She complained that the Appellant was in repudiatory breach of her contract of employment and the Tribunal upheld her complaint.  In the three grounds of appeal pursued before us the Appellant contends that the Tribunal erred in law in concluding:
“(1) That the repudiatory breach of the contract of employment by the Appellant, in requiring the Applicant either to give up one salary point or accept additional responsibilities, took place in November 1999 when it took place, on the Tribunal’s findings of fact, no later than 14th September 1999:
(2) That there was a total breakdown in the relationship between the Applicant and the Appellant’s head teacher, which does not equate to a repudiatory breach of contract by the Appellant; and
(3) That the Applicant did not affirm the contract of employment after the Appellant’s repudiatory breach, in circumstances where the repudiatory breach of contract took place no later than 14th September 1999 and the Applicant did not resign until 30th March 2000.”

2	Initially the Appellant was pursuing a further ground of appeal, contending that the Tribunal erred in concluding that there was a repudiatory breach of contract by the Appellant at all, in requiring the Applicant either to give up one extra salary point or accept additional responsibilities.  Mr. Bradley of counsel, representing the Appellant before us, has not pursued that ground today, acknowledging it in opening as “weak” and accepting in the course of his submissions that it was clearly implicit in the Tribunal’s decision that they found the additional responsibilities to have been assigned to the Applicant unreasonably and the Appellant therefore to have committed a repudiatory breach of her contract.  Absent an allegation of  perversity, which is not made in this case, Mr. Bradley accepted, wisely in our view, that he could not challenge the Tribunal’s finding that there was in that respect a repudiatory breach.  He therefore concentrated on their findings as to affirmation of the contract by the Applicant.  

The Facts
3	The hearing before the Tribunal lasted some five days and there were nine witnesses.  The relevant facts found by the Tribunal were these.  Section 2(7) of the School Teachers’ Pay and Conditions Act 1991 provides that, so far as concerns a teacher’s statutory conditions of employment, the contract of employment of a school teacher shall contain no terms other than those which have effect by virtue of a pay and conditions order.  The statutory conditions of employment included the payment of responsibility points and the allocation of duties for which those responsibility points are paid.  By virtue of the School Teachers’ Pay and Conditions Document 1999, the Applicant’s contract of employment expressly provided that the Appellant would carry out a determination of her salary with effect from 1st September 1999 and that the Applicant would be notified in writing of that determination and of the number of points awarded under each criterion set out in the 1999 Document.  Her contract of employment also provided that her duties would not be unilaterally varied or increased except in accordance with the terms of the 1999 Document, paragraph 49.1 of which states that a teacher shall perform such particular duties as may reasonably be assigned to her by the head teacher.

4	The Applicant was head of the special needs department at the Appellant school, which is in an extremely deprived and run-down part of Knowsley, with many children on the special educational needs Register or “statemented”.  In 1994/95 she became the special educational needs coordinator (SENCO) and thus had the management responsibility of ensuring that the specified teaching provision was delivered and, in her role as teacher, additional personal responsibility for the delivery of that education.  

5	The head teacher,  Dr. Doherty, joined the school in September 1998 and soon afterwards the Applicant conveyed to him her concerns about weaknesses in the special needs provision at the school and the possibility of failing the next Ofsted inspection unless they were addressed.  The Tribunal found at paragraph 4 of their Extended Reasons that: 

“The applicant told the head that she needed more administration assistance.  The school by that time was seriously under-funded and there was pressure on all the staff to meet targets set.  The applicant had been given the assistance of a Mrs. I Douglas an SEN teacher, who had supported the SEN department for three days a week, some time before, but at the end of the middle term in 1999 Mrs. Douglas was told that she would no longer be needed after 1st May.  She left at the end of the Spring term.”
During the first half of 1999 the Applicant was teaching for 21 out of a total of 30 lessons each week, with other “non-contact” periods being used for preparation, marking, SENCO and head of department duties.  At paragraph 5 the Tribunal found as follows:
“In the Autumn term of 1999 Dr. Doherty removed the four SEN administration non-contact periods, thereby increasing the applicant’s teaching commitment to 25 out of 30 periods a week.  In February 1999 the applicant was told that those who were on salaries which had been safe-guarded when the two schools amalgamated in 1986 would have to take on additional duties.  Those members of staff who had in excess of three non-contact periods per week were told that they would have to give up these periods to take the lessons left uncovered by Mrs. Douglas’s departure.  The staff were non-specialist and had no SEN experience.  The applicant registered her grave concern at staff meetings and heads of department meetings.  She also went to see the head.”

6	Before the end of the Summer term 1999 the Applicant was informed by Dr. Doherty, amongst other things, that one of her four responsibility points was to be removed with effect from 1st September 1999 or that she was to be given additional duties, because she did not have enough responsibilities for the money she was receiving.  The Tribunal found at paragraphs 6 and 7 as follows:
“She asked how much extra time she would be given to carry out these extra responsibilities and was told that there would be no more time available and it was at this point that she was told that she would lose the four SEN administration periods.  The applicant was asked to take on careers and work experience.  When approached by Miss Bradford, who was relinquishing the work experience position, and wished to pass over to the applicant the documentation relating to work experience, the applicant declined on the ground that she had not as yet agreed to accept the new role.  A further meeting with the head was arranged for 1 July, 1999 and the applicant was told that because she had not volunteered to accept the additional responsibilities, she was being given the careers and work experience roles and was again told that no extra time would be made available. …. The applicant immediately contacted her union representative, Miss M. Twist, about the work she was being expected to undertake and Miss Twist agreed to come into school to meet her on July 19th 1999.  The applicant also went to see Angela Bradford to discover what the work experience role consisted of and she also approached Mr. Mike Moorhouse, asking the same questions about the careers role.  Both members of staff made it clear to her they were relinquishing the positions, because of their inability to fulfil the duties in the time allocated.  Mr. Moorhouse told the applicant that he had wished to relinquish the role at Christmas 1998, but had agreed to carry on at the personal request of Dr. Doherty.  Following advice from Miss Twist, the applicant again saw Dr. Doherty emphasizing the requirement to satisfy her SEN duties and her need for additional time to carry out the proposed additional duties.  Dr. Doherty reiterated that there would be no more time available.  The applicant contacted Miss Twist again, who said that she would contact Dr. Doherty again and request a meeting.  That meeting could not be arranged until September 1999, because of the school holidays.  The Tribunal notes that Dr. Doherty insisted in his evidence that the applicant had agreed to take the careers and work experience duties in June/July, 1999.  The applicant denied this.  The Tribunal prefers the evidence of the applicant.  It noted that she called in Miss Twist because she had not agreed to take on the roles.  It was only when she was faced with a removal of one of her points that she reluctantly accepted the role, but it was clear that it was accepted under protest.  The Tribunal found Dr. Doherty to be a person who heard what he wanted to hear, not what was said.
At the meeting arranged between Dr. Doherty and Miss Twist on 10th September 1999 Miss Twist had learned that the head was not prepared to give the applicant any further time and was told that the applicant had the option of either giving up a salary point or taking on additional duties of careers and work experience.  Miss Twist suggested that it would be a good idea for the applicant to meet with the head and discuss matters, to see if they could both find a way forward, because there appeared to be communication difficulties.  At this time it was common knowledge around the school that the applicant was taking on the work experience role.  That meeting took place on 14th September 2000 and applicant agreed to take on the additional work involving work experience, but she made it absolutely clear that she was doing so under duress and that she was very concerned about how she would manage all the work.  The Tribunal accepts the applicant’s evidence that she felt annoyed and disheartened that it was being said that she was doing enough to earn her salary.”

7	In paragraphs 8 to 15 the Tribunal set out in detail their findings as to what happened between 14th September and 5th November, when the Applicant became ill enough for her to go off on sick leave.  There is no necessity for us to repeat these detailed findings here, but the clear picture which emerges is one of an increasing workload being imposed upon the Applicant, with no or inadequate support being provided to assist her to comply fully with all her responsibilities.  By 7th October the Applicant had begun to feel unwell.  At paragraph 11 the Tribunal found that: 
“At this time the applicant felt physically sick and told the head in clear terms that she could not complete all the work that had to be done that day without help.  He insisted that no help was available.  The applicant told the head that speaking to him was like speaking to a brick wall.  She admitted to the Tribunal that she was shocked at her own behaviour.  She had started to feel dizzy and upset and she left to sit down in her office, because she thought she might say something she would regret.  The head followed her and stood in the doorway and told her that she should not upset herself and that it was his responsibility and he had every confidence in her.  Dr. Doherty then left, but the applicant continued to feel dizzy and sick. …. The applicant insisted that she made it clear to the head that her health was suffering.  The Tribunal accepts her evidence.”
At paragraph 12 they found:

“During the week 11 to 15 October the applicant went to the head and told him that she did not know how she had survived the previous week and that she could not repeat that kind of experience or she would be ill.  The applicant told the head that her blood pressure was up because she had felt sick and dizzy.  The Tribunal finds that this was the second time that the applicant had drawn the head’s attention to her health problems.”

8	The week of 25th to 29th October was half term week and the Applicant went away on holiday, but the Tribunal found that she did not sleep very well and felt exhausted.  On her return they found that she “faced a further week of stress” (paragraph 13).  The Tribunal found that Dr. Doherty had called in an SEN consultant, Miss Hayward.  The Applicant’s understanding was that Miss Hayward was coming in order to help the school with an application for a grant and not to inspect the work of the SEN department.  The Tribunal found that this was what the Applicant was led to believe, but they set out in paragraphs 13-15 the different picture which emerged concerning Miss Hayward’s role and the events which led to the Applicant expressing serious concerns about the level of scrutiny to which she personally was being subjected by Miss Hayward.  By lunchtime on Friday 5th November the Applicant was once more feeling very unwell and went home as soon as she could.  The Tribunal accepted her evidence that she could not even remember the weekend that followed.  She did not return to work the following week and subsequently visited her doctor and contacted her union representative, Miss Twist.  It was accepted before the Tribunal that the Applicant was suffering from a stress-related illness and there was medical evidence before the Tribunal confirming this.  At paragraph 15 the Tribunal found:
“…. both her doctor and Miss Twist advised her not to resign, as she was too ill to make any decisions.  Her doctor continued to care for her and during her illness the Applicant saw a psychiatrist.  By the end of February the Applicant began to feel stronger and contacted Miss Twist, but she decided to resign because she could not bear the thought of retuning to the school.  She felt that she would suffer a breakdown and be hospitalised, if she returned to the school.  The Applicant felt that her relationship with Dr. Doherty had completely broken down.  This was confirmed to her when he seemed to suggest that she was not carrying out the proper procedure in relation to her sick notes.  Following a meeting with Miss Twist the Applicant submitted her resignation at the end of March 2000 and her psychiatrist supported her.  At no time was she offered any support or help by the school during her absence.”

9	One of the witnesses called by the Appellant was David Parry, a consultant experienced in SEN work, who was approached by the Advisory Service of the Knowsley Local Education Authority in the latter Autumn term of 1999 to work part-time at the school to support the SEN department whilst the Applicant was on sick leave.  The Tribunal observed at paragraph 1 of their decision that they had found his evidence to be of particular importance.  At paragraph 16 they stated as follow:
“The Tribunal found significant his evidence that if the applicant did in fact teach for the full amount indicated on the time table, it would be impossible for her to carry out the administrative functions of the SENCO in the rest of the available time.  The clerical assistance provided to the SENCO was inadequate; there was no evidence of the involvement of the SEN governor; there were many more pupils in the school who had special educational needs than might normally be expected and who could be catered for by the efforts of one individual.  Mr. Parry concluded that it was his belief that the resources given to the applicant was inadequate to enable her to fulfil her role.”

10	It is common ground that the Tribunal directed themselves correctly as to the provisions of sections 94(1) and 95(1)(c) of the Employment Rights Act 1996 concerning constructive unfair dismissal and to the case of Western Excavating ECC Ltd –v- Sharp [1978] ICR 221 and the tests to be applied.  They expressly directed themselves at paragraph 18 that following a repudiatory breach of contract an employee must not delay too long before resigning so that s/he does not thereby affirm the contract and lose the right to claim constructive dismissal.  They also directed themselves correctly as to the nature and scope of the implied term of mutual trust and confidence between employer and employee, referring to the cases of Woods –v- WM Car Services (Peterborough) Ltd [1981] ICR 666 and Lewis –v- Motorworld Garages Ltd [1985] IRLR 465.  Having regard to these cases the Tribunal directed themselves correctly that their function was to look at the employer’s conduct as a whole and to determine whether it was such that its effect both reasonably and sensibly was such that the employee could no longer be expected to put up with it.  They also recognised that in the Lewis case the Court of Appeal held that:
“individual actions by an employer, which do not in themselves constitute fundamental breaches of the contractual term, may have the cumulative effect of undermining trust and confidence”
(paragraph 18 of the Reasons).  

11	After setting out the parties’ submissions at paragraphs 19 and 20, which reflected the lengthy and comprehensive closing written submissions presented to the Tribunal by both sides in the case, the Tribunal’s conclusions are set out succinctly at paragraphs 21 and 22.  They are as follows:
“21.   The Tribunal finds that the applicant was dismissed and that that dismissal was unfair.  It is clear that the applicant was entitled to four extra salary points for her role as SENCO alone, but even if this were not the case and she should have received three points only, her special qualifications for SEN teaching justified the remaining point.  The applicant’s four points should not therefore have been reduced without the applicant’s agreement and this was not obtained.  This alone was a fundamental breach of contract, but the respondents further exacerbated the situation by forcing the applicant to take additional duties to justify that extra point and by leaving the applicant without the necessary support to carry out those duties and her normal teaching and SENCO roles.  The Tribunal notes the evidence of Mr. Parry that the applicant had insufficient assistance to perform both her SENCO and teaching roles properly.  Finally, the respondents misled the applicant about the reason for the presence of Miss Hayward.  It is quite clear that her investigation turned into an investigation of the applicant’s performance.  The Tribunal finds that by the time the applicant went of sick, there was a total breakdown in the relationship between the applicant and the head.  The Tribunal has considered whether the five months between the applicant’s going off sick and her resignation amounted to an affirmation of the breach and finds that it did not.  The applicant’s illness prevented her making a rational decision and when she was able to, the applicant decided to accept the respondents’ repudiation of the contract.  The Tribunal therefore finds that the applicant was dismissed.
22   The Tribunal further finds that that dismissal was unfair.  While it appreciates the parlous position of the school’s finances, the Tribunal does not accept that the behaviour of the respondents was fair.  The Tribunal infers that the addition of onerous duties, in addition to those of the applicant’s already heavy workload as an SEN teacher and co-ordinator, was done to persuade the applicant to relinquish one of her four points.  There is a legal way of reducing an employee’s salary; the respondents did not choose to take that legal way and the Tribunal finds that the dismissal was unfair.”

The grounds of appeal and our conclusions
12	Mr. Bradley’s submissions, in relation to the three grounds of  appeal,  were essentially these:
“(i)  In paragraph 21 the Tribunal found only one repudiatory or fundamental breach of contract, relating to the removal of one of the Applicant’s salary points, which breach took place in September 1999.  They found no further repudiatory breaches and the total breakdown in the relationship between the Applicant and Dr. Doherty which they found to have occurred does not constitute a repudiatory breach of contract entitling the Applicant to resign and complain of constructive dismissal.
(ii)  There then followed a reasonable trial period, with the Applicant undertaking the additional responsibilities assigned to her which the Tribunal refer to in detail (in what Mr. Bradley accepted were full and careful findings of fact.)  This lasted until 5th November when the Applicant went off on sick leave.  Mr. Bradley does not submit that, during that two-month trial period, as he describes it, the Applicant is to be taken as having affirmed the contract by failing to resign.  However, by delaying between 5th November 1999 and 30th March 2000 he submits that she is to be regarded as having waived the repudiatory breach and as having affirmed the contract and the Tribunal erred in concluding to the contrary.  The test established in Western Excavating –v- Sharp and applied in numerous subsequent authorities requires a wholly objective approach to the test for affirmation.  Here, by continuing to receive her sick pay and failing expressly to reserve her position for a period of almost five months, the Applicant is to be regarded as having affirmed the contract.  The Tribunal erred in approaching the matter subjectively and considering the Applicant’s individual circumstances in concluding that she had not affirmed the contract.”

13	We find ourselves unpersuaded by these submissions.  With regard to the submissions at paragraph (i) above, we all agree that a proper reading of this Tribunal’s decision is not that they had found only one, discrete, fundamental breach of contract in relation to the removal of a salary point.  As is clear from her Originating Application and written closing submissions from counsel on her behalf the Applicant’s case throughout had been that there were both fundamental breaches of express terms of her contract, relating to the removal of a salary point and the unreasonable assignment of additional duties, and also fundamental breaches of implied terms in her contract, including the implied term of mutual trust and confidence.  She alleged that, by imposing an excessive and unreasonable workload on her and failing to provide her with the necessary support and assistance which led to her suffering a serious stress-related illness, the Appellant was thereby in breach of the implied duty of trust and confidence between employer and employee.  In our view this Tribunal clearly found that the Applicant had made good her case under both heads.  

14	The facts found by the Tribunal, quite apart from the removal of the salary point, revealed a gradually evolving situation, in which the Applicant had her “non-contact” periods reduced and her assistant Miss Douglas removed, additional duties assigned under protest and no support offered despite her requests for help and her reports of the adverse effects of her workload upon her health.  She was then, as the Tribunal found, misled by the Appellant about the reason for the presence of Miss Hayward, whose investigation turned into an investigation of the Applicant’s performance.  That the Tribunal found there to be on-going and cumulative breaches of the implied term of trust and confidence sufficient to amount to a repudiatory breach of contract is clear from their reference in paragraph 21 to the “further exacerbation” of the situation by “forcing” the Applicant to undertake additional duties and leaving her without the necessary support to enable her to carry them out.  Whilst we accept there is not an additional sentence in paragraph 21, stating expressly that this is what they found, it is in the view of all of us clearly implicit from their reasons read as a whole.  As Mr. Edwards for the Applicant observed, the detailed findings of fact in the earlier paragraphs and the reference in paragraph 18 to the implied term of trust and confidence would all be irrelevant to their conclusion in paragraph 21 if they were satisfied only that there had been one isolated repudiatory breach, consisting of the removal of one salary point.  Further the finding of a total breakdown in the relationship between the Applicant and the head teacher can only be understood in the context of the Tribunal’s clear findings as to the causes of that breakdown.  Whilst we agree with Mr. Bradley that a total breakdown in a working relationship can occur for a whole variety of reasons, the Tribunal’s findings in this case make it abundantly clear that the Tribunal laid the blame for that breakdown wholly on the head teacher because of the breaches of the implied term of trust and confidence they found to have occurred.

15	With regard to Mr. Bradley’s submissions referred to at paragraph (ii) above, our reading of this Decision is that the Tribunal found there to have been on-going and cumulative breaches amounting to a repudiatory breach of contract, which continued up to 5th November, after the incident involving Miss Hayward, when the Applicant went off on sick leave.  Thereafter the Tribunal’s findings of fact were that the Applicant was ill and that both her doctor and her union representative advised her not to resign because she was at that time too ill to make any decisions (paragraph 15).  These findings of fact are not the subject of any challenge on perversity grounds.  It is clear from paragraph 21 that the Tribunal addressed their minds to the five-month delay between 5th November and the Applicant’s resignation at the end of March.  On their findings of fact we consider that they were entitled to conclude that in these circumstances the Applicant’s illness had prevented her making a rational decision but that, when she had recovered sufficiently to enable her to do so, she decided to accept the Appellant’s repudiation of the contract.  

16	We do not accept Mr. Bradley’s submission that the case of Western Excavating –v- Sharp and subsequent authorities establish a wholly objective test for affirmation without any regard to the circumstances of the individual employee.  The well-known passage in the judgment of Lord Denning in Western Excavating –v- Sharp, on which Mr. Bradley relies, is that set out at page 226 of the report:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

17	However, this authority has never been understood to mean that there is a fixed time within which an employee must make up her mind.  Subsequent authorities have made clear that the question whether delay in a particular case means that an employee has waived the breach will depend on all the circumstances including, for example, the employee’s length of service (GW Stephens and Son –v- Fish [1989] ICR 324), or the nature of the breach and whether the employee has protested at the changes to her contract (WE Cox Toner (International) Ltd –v- Crook [1981] ICR 823).  In the case of Lewis –v- Motorworld Garages Ltd [1986] ICR 157, to which this Tribunal referred, Glidewell LJ. conveniently summarised some of the relevant principles at pages 169 D-170A:

“If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment, and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence the employee is entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part – the start – of the series of actions which, taken together with the employer’s other actions, might cumulatively amount to a breach of the implied terms.”

18	In the case of Bashir -v- Brillo Manufacturing Co. [1979[ IRLR 295 the employee was demoted from his position as supervisor after a disturbance involving another employee.  He was offered a non-supervisory job in another department at a lower rate of pay.  The following week, however, he was sick and was paid sick pay for over two months before he eventually resigned.  The sick pay was the same for a supervisor as for the alternative job he had been offered but, during his absence, his solicitor had made it clear to the company that he was not prepared to accept a job involving a reduction in pay.  The Employment Tribunal sought to apply the words of Lord Denning in Western Excavating –v- Sharp and concluded that he had affirmed the contract by continuing in the employment for so long.  However, the EAT allowed the employee’s appeal, holding that the Tribunal had attached too much importance to the mere passage of time and that it could not be said that merely by receiving sick pay the employee was affirming the new job offered, since its acceptance was equally consistent with his affirming his employment as supervisor.  At paragraphs 16-18 of the judgment Slynn J. said:
“16     But [the receipt of sick pay] does not, of itself, seem to us to be necessarily fatal to Mr. Bashir’s claim.  It seems to us that when the Master of the Rolls is talking about the employee continuing for any length of time without leaving he is referring to a situation where the employee actually does the job for a period of time without leaving, or if he does some other act which can be said to affirm the contract as varied.  The most that can be said here is that Mr. Bashir, by applying for and taking the sick benefit, was affirming the existence of a contract of employment.  He said it was employment as a supervisor and he would accept no employment at a lesser wage.  But because the amount of sick pay is the same for a supervisor as for a labourer or other worker in the kind of job which Mr. Bashir might have done, it does not seem to us that it can be said that by the receipt of sick pay he has done an act to affirm the contract as varied.
17   Accordingly here it seems to us that the Industrial Tribunal, although quite rightly seeking to apply the decision of the Court of Appeal in Western Excavating –v- Sharp [1978] IRLR 27, have attached too much to the mere passage of time.  What they really had to consider was whether, he not having worked, there were other factors which could be taken as showing an election to affirm the contract as varied.  On the very special facts of this case, where the employee was absent sick for some two-and-a-half months after the act of the employer which is relied upon as a repudiation, and where the employer was also pressing the man to take the new job, realising that he was refusing it, but going on to pay him sick pay, it seems to us that Mr. Bashir was still entitled, at the end of the period, to say when he was ready, or apparently ready, to go back to work that he accepted the repudiation.
18   Accordingly it seems to us that he was not here barred by any conduct of the kind which the Master of the Rolls had in mind in Western Excavating –v- Sharp [1978] IRLR 27.  Accordingly we consider that here the Industrial Tribunal came to the wrong conclusion and we could allow the appeal.”

19	Since there was here no express affirmation Mr. Bradley relies, in this case, on the delay of five months between the start of the Applicant’s sick leave and her resignation and her continued receipt of sick pay during that period without any express reservation of her position communicated to the Appellant.  In our view this submission attaches too much importance to the mere passage of time and wholly ignores the special circumstances which this Tribunal found to exist and which they had regard to in arriving at their conclusion.  Whilst a delay of five months might well, without more, lead to a finding that the employee has affirmed the contract, these cases will always turn on the particular facts as found by the Employment Tribunal, which will underpin the Tribunal’s final decision.  In the present case the Applicant’s medical condition and the advice she was given both by her doctor and her union representative were important factors for this Tribunal.  Further, as we have already indicated, the length of service of an employee will always be relevant to the length of time for which it is reasonable for him/her to consider the position before deciding whether to resign and claim constructive dismissal.  In this case the Tribunal found the Applicant to have had many years service at the Appellant School in special needs teaching. It was also clear that teaching was the Applicant’s primary income source.  The Tribunal found additionally that the Applicant had accepted the additional duties assigned to her under protest and that she had complained subsequently about her excessive workload, the lack of support and the effects it was having on her health.

20	For those reasons we can see no error of law and thus no basis for interfering with the decision of this Tribunal which, in our view, was one they were entitled to reach.  This appeal is therefore dismissed.