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Employment Law

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26 MAY 2015

Colomar Mari v Reuters Ltd UKEAT 0539/13; (2015) EMPLR 024

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.

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