The Employment Appeal Tribunal last month upheld a ruling that an employee who had spent 18 months on sick leave before resigning had delayed too long to bring a claim of constructive dismissal.
The employee accepted that the treatment to which she objected took place before the commencement of sick leave. She attempted two arguments to justify her delay:
- I was too sick to properly consider my position. No you were not, said the Employment Tribunal - during this period you organised extensive travel plans, engaged in coherent email traffic and took legal advice.
- I did not ever “affirm” the contract so as to lose my right to claim constructive dismissal. How could I have done so? I was off sick. Not so, said the Tribunal - you accepted sick pay over a long period of time and, in doing so, lost your right to claim constructive dismissal.
The EAT reminds us that while a short period of sickness is acceptable, particularly if the employee protests about her treatment, a long delay is not. Here the employee accepted 39 weeks of sick pay. Likewise, while a short delay before resigning in order to find another job is understandable, a desire to remain employed until another job is found can be too long a delay.
As before, an employee seeking to claim constructive dismissal must not delay too long.
(Colomar Mari v Reuters Ltd UKEAT/0539/13/MC)