Can a final straw revive a historically affirmed breach of contract?
No, held the EAT in Pets at Home Ltd v MacKenzie.
The Claimant was an assistant manager at a Pets at Home store. In February 2015, while pregnant, she applied for promotion to Deputy Manager. Pets at Home refused to 'fast-track' her into the role and she was unsuccessful in an open recruitment process.
In January 2016, while on maternity leave, the Claimant applied again for the Deputy Manager post, again without success.
In March 2016, another Assistant Manager (whom the Claimant had previously managed) informed her that he had been promoted to Deputy Manager, although the truth was he had merely succeeded at an assessment day and still faced a trial period at another store. The Claimant resigned, apparently relying on her colleague's promotion as the final straw.
The EAT reminded itself of the decision in Vairea v Reed Business Information Ltd and found that the Tribunal had focussed wrongly only on the affirmation and delay issues in relation to the final straw, without considering whether the earlier acts of discrimination or breaches of contract had been affirmed. The EAT said the Claimant had the choice whether to accept the breach and resign at the time of those acts. If the tribunal had found the earlier acts could still be relied upon to resign, that conclusion was perverse.
Thanks to David Leslie of Lyons Davidson for preparing this case summary.