The Claimant resigned after being off sick and claimed constructive unfair dismissal at the ET. In these long running proceedings, the ET found that, considering the claimant's six week delay before resigning, the Claimant's comments, his further and better particulars, his actions in claiming sick pay and his submission of sick notes, it was clear that the Claimant did, positively, affirm his contract of employment. The Claimant appealed.

The EAT allowed the appeal. The ET's agglomeration of the six weeks' delay during which the Claimant was on sick leave, his receipt of sick pay and submission of sick notes, together with comments and a document prepared long after the event and further un-particularised comments, was a clear error of law. Each of those matters could have been a factor pointing towards affirmation, against it, or simply neutral. The ET had simply failed to set out how it viewed each of those factors and why.