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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Employee on sick leave found to have affirmed contract
25 February 2015

Could an employee who continued to claim sick pay for 18 months following her letter of complaint, claim they had been constructively dismissed by their employer?

Facts

In Mari v Reuters Ltd, an employee raised complaints about her workload and colleagues and claimed that her employer’s inaction had caused her to suffer stress, anxiety and depression. She wrote to her employer citing there had been a ‘fundamental breakdown’ in the employment relationship and that she intended to raise a grievance but the employee was too ill to raise one at that point. The employee went off on sick leave for a further 18 months. After 18 months, the employee resigned and claimed she had been forced to resign by her employer’s previous behaviour.

After such a long period of time – during which period she had been paid sick pay and had attended return to work meetings – could the employee rely on her employer’s previous bad behaviour as breaching the contract of employment or had the employee’s actions during her period of sick leave, be said to have “affirmed the contract”?

Decision

The Employment Tribunal, with the Employment Appeal Tribunal in agreement, rejected the employee's argument. There was conflicting medical evidence and to whether or not she had been too ill to raise a grievance or resign earlier, as she alleged. Also, the employee by her own actions had shown an intention to treat the employment relationship as continuing and not as being irretrievably broken. She had continued to accept sick pay and PHI and had also attended return to work meetings. The employee had affirmed the contract of employment and could not therefore, argue she had been forced to resign and claim contrastive unfair dismissal.

Does a delay always mean the employee will have accepted the breach and affirmed the contract?

No. Whether or not the employee has delayed in resigning is a question of fact in each case and there can be no set rule. A leading case which was relied on by the Tribunal and EAT states that delay of itself does not constitute affirmation but that affirmation may be implied from the employee’s conduct.

The question of whether delayed resignation or accepting sick pay – even accepting PHI – prevents a claim of constructive dismissal will depend on the facts of every case. However, this case serves as an important reminder that employers should support employees on long term sickness absence and deal with complaints in a timely manner.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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