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In a recent case, the Employment Appeal Tribunal (EAT) considered whether an employee who had delayed 18 months before resigning and accepted sick pay during that period, could bring a constructive dismissal claim.
In Mari v Reuters Ltd, Ms Mari was a systems support analyst for Reuters Ltd. She was off work with symptoms of anxiety, stress and depression between May and October 2008, and from August 2010 to April 2012, when she resigned. Ms Mari subsequently brought a claim for constructive dismissal.
Ms Mari claimed that prior to her second period of sick leave she had been treated unfairly by her managers and colleagues. She claimed that she was given work below her expertise and had effectively been demoted. She also alleged that she had been too ill to resign during her sick leave. Reuters argued Ms Mari's constructive dismissal claim could not succeed as she had affirmed her contract.
The Employment Tribunal (ET) dismissed Ms Mari's claim on the grounds that she had affirmed her contract. The ET found that Ms Mari had not been incapable of resigning for medical reasons. During her sick leave:
Ms Mari had accepted 39 weeks of sick pay
she had made repeated requests to access her work email
she had made a request to be considered for permanent health insurance, and
she had entered into discussions about her continuing employment
Ms Mari appealed but the EAT dismissed her appeal. The EAT held that the ET was entitled to find that Ms Mari was not too ill to resign sooner than she did.
Where an employee alleges that there has been a serious breach of contract, he or she may:
elect to accept the breach and treat their contract as at an end, which can form the basis of a constructive dismissal claim, or
treat their contract as continuing (often referred to as affirming the contract) and sue for damages arising from the breach if they so wish
The EAT made it clear in this case that whether an employee's acceptance of sick pay amounts to affirmation of the contract will depend on all the facts of the case. Employers should not necessarily assume that delay in itself amounts to affirmation. Tribunals will look at all of the facts as a whole to determine whether a contract has been affirmed.
The EAT accepted that there may be some cases where an employee is too ill to resign, but they are likely to be exceptional.