Was the employee’s argument that she was too ill to resign for 18 months successful? Or was she found to have affirmed her contract and therefore not able to bring her constructive dismissal claim? In the case of Colmar Mari -v- Reuters the EAT have held that employee’s sickness argument would not succeed.
Ms Mari was off work with stress, anxiety and depression during 2008, and subsequently from August 2010 to April 2012. When she went onto sick leave in August 2010, she complained that she had not benefited from the same work opportunities as her colleagues, saying that she “would no longer tolerate this situation” and that she was “considering her position”. She said that she would be in contact again “when I am well enough”.
She eventually resigned in April 2012 and brought proceedings for constructive unfair dismissal, arguing that Reuters’ treatment of her had amounted to a ‘repudiatory’ breach of her contract of employment, so that she could treat herself as having been unfairly, constructively dismissed.
Constructive dismissal claims cannot be brought where employees have delayed too long in resigning, as the delay may be taken as a ‘waiver’ of the breach or ‘affirmation’ that the employee is still happy to be employed under the employment contract. Ms Mari argued that she had simply been too unwell to resign, and that she should therefore be able to bring her claim of constructive dismissal.
Case law has established that whether or not there has been a waiver or affirmation will depend on the facts of each case. In this case, the following factors were significant in finding that there was in fact a waiver/affirmation by the employee:
- She had delayed 18 months in resigning.
- She had accepted 39 weeks’ sick pay.
- She had made requests to use her work email during her absence.
- She had had discussions about a return to work with Reuters.
Ms Mari was therefore unable to continue with her constructive dismissal claim.
The EAT held that there may be circumstances where an employee will be simply too ill to resign, but that these cases were likely to be the exception, and that this was not one of them.
Employees on sick leave should therefore not delay in resigning if they are planning to bring an unfair dismissal claim.