Burges Salmon acted for the employer in the case of Colomar Mari v Reuters Ltd, successfully arguing before the Employment Appeal Tribunal (EAT) that the employee was not too unwell to resign and, by her conduct, had affirmed her contract of employment. Accordingly, she was not entitled to bring a claim of constructive dismissal.

The employment tribunal had dealt with the Claimant's claim of constructive dismissal as a preliminary point at the hearing and decided that the claim could not succeed because she had affirmed her contract of employment. Although the Claimant relied on the severity of her medical condition as a reason why it took so long to resign, the tribunal decided that she had by her conduct treated the contract as continuing including:

  • acceptance of 39 weeks' sick pay
  • repeated requests for, and the use of, access to work email
  • requests to be considered for permanent health insurance
  • discussions concerned with continuing employment (for example, at a welfare meeting).

There were two key issues dealt with by the EAT when the Claimant appealed.

The first was whether the Claimant, who had spent over 18 months on sick leave before resigning, was medically incapable of resigning earlier. It is a question of fact for the employment tribunal whether an employee has delayed too long before resigning. The EAT held that the tribunal was not bound to accept a doctor's opinion that the Claimant was too ill to resign and was entitled to look at the evidence as a whole. There was nothing perverse in the employment tribunal's finding that she was not too ill to resign as she had travelled, taken legal advice and engaged in email correspondence during her sickness absence.

The second issue considered by the EAT was whether the Claimant had affirmed her contract. It pointed out that the acceptance of sick pay by a seriously ill employee for a limited period of time whilst protesting about the position may be acceptable, and would not be taken to be an affirmation. However, a long delay, when combined with other conduct that shows the employee treats the contract as continuing, would constitute affirmation and prevent a claim of constructive dismissal.

Colomar Mari v Reuters Ltd UKEAT/0539/13