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Delaying resignation due to long-term sickness can be fatal to a constructive dismissal claim

The EAT has held that a Tribunal was right to reject a claimant's argument that she was too ill to resign while on long-term sickness absence and conclude that she had affirmed her contract. The claimant in Colomar Mari v Reuters Ltd was found to have delayed her resignation too long to claim constructive dismissal.

Background

The claimant was employed by Reuters Ltd as a systems support analyst. She complained that on return from a first bout of sickness, her work area had been re-allocated, she was given no specific place to work, she was asked to do work well below her expertise and her colleagues treated her badly. She claimed that the final straw was a refusal of access to the system to carry out work within her expertise which amounted to a fundamental breakdown of trust and confidence. The claimant argued that this fundamental breach contributed to her second serious episode of depression and ultimately, her resignation. She claimed that she was too unwell to resign and remained absent from work on sick leave until she resigned 18 months later.

During her sickness absence, she received contractual sick pay for the first 39 weeks, and then made a claim under Reuters’ permanent health insurance policy. She also requested access to her work email and attended return to work meetings.

After 18 months on sick leave she resigned and brought a constructive dismissal claim in the Employment Tribunal. The claimant accepted that the treatment to which she objected took place before the commencement of sickness absence and therefore needed to justify her delay. She said:

1. She was too sick to properly consider her position; and

2. She did not ‘affirm’ her employment contract as she was off sick.

The Tribunal rejected both these arguments. It held that the claimant had affirmed the contract through: accepting the sick pay; requesting access to her work email; requesting the company’s permanent health insurance; and continuous discussions regarding her employment with the company. It also held that the claimant was not incapable of resigning at an earlier period. The Tribunal dismissed her claim. The claimant appealed.

The EAT rejected the claimant’s appeal. The EAT agreed with the Tribunal’s analysis and found that the claimant had affirmed her contract by requesting Reuters to perform its obligations under the contract to pay contractual sick pay and also claiming permanent health insurance.

Implications

This case is good news for employers. It’s a wake-up call for employees who delay their resignation too long thinking that, just because they are on sick leave, the countdown clock for resigning has been paused. On the facts of this case, the EAT decided that clock had not been paused.

This case confirms that employees who seek to claim constructive dismissal cannot delay too long before resigning following a fundamental breach. A short period of sickness is acceptable before resigning, but a long delay is not. Claiming sick pay can also be used to show that the employee has not ended the contract. Whilst this case is an important reminder that employers should support employees on long-term sickness absence and deal with complaints in a timely manner, each case should be considered on its facts. The question of whether delayed resignations or accepting sick pay prevents a claim of constructive dismissal will be fact specific and in this case the claimant’s conduct was such that she affirmed the contract.

How can you find out more?

If you would like any further information on the issues raised above, please contact Tim Gofton on 01242 248283 or email tim.gofton@bpe.co.uk.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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