Could a delay in resignation and acceptance of sick pay invalidate constructive dismissal?

3d small people - clock(Colomar Mari v Reuters Ltd)

Ms Colomar Mari was employed by Reuters Ltd as a systems support analyst. From May to October 2008, she was off work with symptoms of stress, anxiety and depression. She was later off work between August 2010 and April 2012. On 13 October 2010, Ms Colomar Mari wrote to her employer, complaining that she had been unfairly treated by management and her colleagues. She argued that she had not been given the same opportunities as other members of her team. Ms Colomar Mari remained absent from work on sick leave, until she resigned in April 2012.

During her sick leave period, she received contractual sick pay for the first 39 weeks, and then made a claim under Reuters’ permanent health insurance policy. When she was off work, she also requested access to her work email, and on several occasions, participated in welfare discussions about her continuing employment.

In July 2012, Ms Colomar Mari issued proceedings against Reuters, including one for constructive dismissal. She claimed that she had practically been demoted when she first returned to work, as she was given work much below her level of expertise and did not have a fixed work area. As a result, Ms Colomar Mari argued that this was a fundamental breach of trust and confidence, which contributed to her second serious episode of depression and ultimately, in her resignation. She reasoned that her delay in resignation was as a result of being too unwell.

The employment tribunal considered the question of affirmation as a preliminary issue, and held that Ms Colomar Mari had affirmed the contract through: accepting the sick pay; requests to access her work email; requests for the company’s permanent health insurance; and continuous discussions regarding her employment. They also held that Ms Colomar Mari was not incapable of resigning at an earlier period. Therefore, the tribunal dismissed her claim.

Following this outcome, Ms Colomar Mari appealed to the EAT, who dismissed it and upheld the tribunal’s decision.

Sunil Abeyewickreme Says:  This case makes clear that if an employee claims constructive dismissal, they must do so without delay following the fundamental breach. Any delay could indicate that the breach has been affirmed. Interestingly the EAT have said that a tribunal (and therefore an employer) is not bound to accept a doctor’s opinion that an employee is too ill to resign and can take into account other evidence which may suggest otherwise. This case could make constructive dismissal claims less attractive and employees will have to take important decisions about their future employment with their employer at an early stage.


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