Constructive unfair dismissal & sick pay

Colomar Mari v Reuters

The Employment Appeal Tribunal (“EAT”) decided in this case that an employee does not necessarily affirm their contract, and hence preclude them from claiming constructive unfair dismissal, by claiming sick pay whilst off sick.

The Claimant was a systems support analyst. She resigned 19 months after going off sick with stress, anxiety and depression. An employment tribunal rejected the Claimant's assertion that she had been too ill to resign sooner and dismissed her claim, stating she had affirmed the contract.

Even though the EAT dismissed the Claimant’s appeal, it did note that 'What can be safely said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period whilst protesting about the position'. The Claimant lost her case because she had not protested her position while she was off sick and had gone further than simply accepting sick pay. She had requested permanent health insurance amongst other factors.

In Practice

Employment Associate Paul Burton says, "This decision is correct based on the fact the Claimant left it so long (19 months) to resign and, as was stated, actively looked for other factors from her employer." What it does show, however, is that an employee may be able to accept sick pay for a relatively short period of time and still be able to resign and claim constructive unfair dismissal. This goes against the common notion that an employee always has to accept an employer’s repudiatory breach of their contract by resigning immediately.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.