In person. For the v Respondent — 2021

The claimant accepted an offer of employment on 25 February 2020 to start on 23 March 2020 as a Service Desk Co-ordinator on £26,000 per annum. Because of the COVID-19 lockdown, the respondent told him on 20 March 2020 that it could not accommodate that start date, and the start was deferred. The claimant later sought to return to Royal Mail, took temporary agency work from 4 May 2020, and in June applied for a different role with the respondent before starting work on 23 June 2020.

The tribunal rejected frustration under Davis Contractors Ltd v Fareham UDC because, at the time of the deferral, the contract was not incapable of performance; at most performance was postponed while the respondent dealt with temporary practical barriers to induction and supervision. It also rejected any consensual variation, finding no evidence that the claimant agreed to defer the start date and noting that he pressed to start as soon as possible. The tribunal found instead that the respondent’s deferral was a breach of contract and, because the ability to work and be paid was fundamental, a repudiatory breach.

Applying Geys v Societe Generale, London Branch, the tribunal held that the claimant had to accept the repudiation before the contract ended. It found that he did so by conduct, including seeking reinstatement with Royal Mail, taking other work, and later applying for the new role with the respondent. The tribunal therefore held that the respondent terminated the contract by repudiatory breach and failed to give the one week’s notice required by the contract.

Damages were limited to the notice period only. The tribunal held that there was no entitlement to wages or other losses for the whole period between the intended start date and the later actual start date. It also rejected pension loss beyond the one week notice period because no pension contributions would have been due until after three months’ employment, and it rejected annual leave loss because annual leave did not accrue during a period of notice not worked. The claimant’s net loss was agreed at £400, and that sum was awarded.