In the recent Employment Appeal Tribunal (EAT) case of Colomar Mari v Reuters LtdUKEAT/0539/13, the EAT considered whether an employee who said she was too ill to resign for 18 months and who received 39 weeks’ sick pay during that period had affirmed her contract.

Constructive unfair dismissal claims are often tricky for Claimants to bring as they must show that:

  1. There has been a repudiatory breach of contract by the employer;
  2. They have accepted that breach (or breaches), and treated the contract as having been terminated by such breach (without or without notice); 
  3. They have resigned in response to the breach (and not for another reason); and
  4. They must not wait too long to accept the breach.  Basically, the resignation should follow on quickly from the repudiatory breach, otherwise there may be issues with causation 

Employers will often, in addition to denying there has been a repudiatory breach, argue in their defence to a constructive unfair dismissal claim that the employee has “waived” the alleged repudiatory breach and has “affirmed the contract”.  Affirmation simply means that the employee has waited too long to resign, has not acted in response to the repudiatory breach, and has effectively treated the employment contract as continuing.  

Affirmation can be implied if the employee requires the employer to perform its obligations under its contract or indicates an intention to continue their contract with the employer.

Ms Mari commenced work as a systems support analyst at Reuters Ltd (“Reuters”) in October 2004.  She was on sick leave with stress, anxiety and depression for most of 2008 and again from August 2010 to April 2012, when she resigned.

Ms Mari brought a constructive unfair dismissal claim at the Employment Tribunal (ET).  She complained about the way she was treated by management and colleagues and stated that this resulted in her long-term sick leave in 2008.  When Ms Mari returned to work, she stated that she had been effectively demoted and treated unfairly by her male colleagues.  She raised a grievance and subsequently went on sick leave again in 2010.

Ms Mari did not resign until April 2012. The conduct that she described as a “fundamental breakdown of trust and confidence” occurred more than 19 months before that date.  She stated, and provided medical evidence to support it, that she was too ill to resign earlier than she had done so.

The ET rejected Ms Mari’s argument that she was too ill to resign and stated that she had affirmed her contract and subsequently dismissed her constructive dismissal claim.  In particular, the ET relied on the fact that Ms Mari made repeated requests for access to her work email account, accepted 39 weeks’ sick pay, asked to be considered for permanent health insurance and was involved in discussions regarding her continued employment with Reuters. 

The EAT upheld the ET’s decision that Ms Mari had affirmed her contract.

This case reminds us that the concept of affirmation in constructive dismissal cases is very fact specific.  The EAT’s decision is consistent with previous cases where employees were on sick leave for significantly shorter periods than Ms Mari but their conduct during sick leave, implied that they intended their contracts to continue.

It is also a reminder that applying for permanent health insurance, which by definition involves remaining an employee, is inconsistent with a constructive dismissal situation.