Acceptance of sick pay was one fatal factor to constructive dismissal claim

The recent case of Mari v Reuters Ltd has considered whether an employee who delayed 18 months before resigning from her employment and accepting sick pay during that time could successfully claim constructive dismissal.

Constructive dismissal

In order to establish a successful constructive dismissal claim, an employee must be able to show three key elements: -

1) Breach of contract – that the employer has committed a fundamental breach of contract – this must be something so serious that “strikes to the heart” of the employment relationship. Commonly employees will argue that an employer has breached the implied term of “mutual trust and confidence”;

2) Resignation – that the employee has resigned as result of that breach; and

3) No delay – the employee must not delay in resigning, or they will be taken to have waived the breach and “affirmed” the employment contract.

Facts

The Claimant, Ms Mari, was employed by Reuters Ltd and had been absent from work previously due to stress and depression. Upon returning to work, she claimed that she had been treated less favourably and was prevented from taking on positions of responsibility.

In October 2010, the Claimant wrote to her employer to voice her serious concerns and subsequently went off sick. In that letter, the Claimant stated that she was “considering her position” but was “not well enough to deal directly with the situation or conduct a grievance”. She confirmed that she would be in contact when she was “well enough”.

Some 18 months passed before the Claimant resigned from her employment on 8 April 2012. During this time, the Claimant remained absent from work due to depression and received 39 weeks’ sick pay.

The Claimant brought a claim for constructive dismissal, arguing that Reuters had committed a fundamental breach of trust and confidence prior to her going off sick. She argued the breach had contributed to her depressing, leaving her unable to resign from her employment until April 2012.

Reuters disputed this, arguing that the Claimant had treated her employment contract as continuing (i.e. affirmed it) due to the passage of time and by continuing to accept sick pay.

Outcome

Both the Employment Tribunal at first instance and the Employment Appeal Tribunal (“EAT”) concluded that the Claimant had affirmed her contract and therefore her claim for constructive dismissal failed.

The EAT confirmed that delay is not necessarily a determining factor on its own - whether an employee has affirmed a contract will be a question of both fact and law. In the current case, the EAT ruled that the employee was capable of resigning sooner.

The EAT looked carefully at the facts of the case including the Claimant’s medical records, her continuing to accept sick pay, her ability to seek access to Reuter’s intranet, visit their premises, travel abroad and so forth. Given that she could do all of these things, the EAT concluded that she was not too ill to resign.

The acceptance of sick pay by an employee was but one factor amongst many in this case and each case will be fact-sensitive. Therefore, the employee’s conduct during any period of sick leave will be key.  On another set of facts, it could be possible for a claimant to be so ill that they simply could not resign, but cases such as this are likely to be rare and very much an exception. In such circumstances, a delay in itself would not necessarily affirm the contract, nor would continuing to accept sick pay during this time necessarily defeat a claim for constructive dismissal. 

In situations where there is a risk of an employee resigning and bringing a constructive dismissal claim, employers should monitor and retain any correspondence with an employee who is off sick. If the employee is making requests to access their emails, entering into correspondence, attending welfare meetings etc., then this is all good evidence to support an employer’s argument that the employee has affirmed their contract of employment.