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Colomar Mari v Reuters Ltd UKEAT 0539/13; (2015) EMPLR 024
30 January 2015
Employment Appeal Tribunal (EAT)
His Honour Judge David Richardson
The right to complain of constructive dismissal is lost if the
employee ‘affirms’ the contract of employment - ie accepts it as continuing
despite the employer’s fundamental breach of contract. Accepting sick pay from
an employer for a significant period before resigning may therefore defeat a
complaint of constructive dismissal.
CM went off sick with stress, anxiety and depression. She
claimed this was because of her unreasonable workload and an abrasive
management style. She returned after five months. On her return, her work had
been reallocated and she was given other work which she considered to be below
her level of expertise. She went off sick again for a further 19 months. She
accepted her contractual sick pay of 39 weeks. During her absence, she used of
the employer’s email system for the purpose of gathering evidence to support
her claims against the employer.
CM claimed that her delay before resigning was due to
her health which, she claimed, rendered her incapable of making decisions. The
tribunal rejected this because she was able to make travel arrangements, take
legal advice and correspond with the employer. The delay, her acceptance of
sick pay and her use of the employer’s email and internet system showed that
she had affirmed the contract so her constructive dismissal claim failed.