In a claim for constructive dismissal the Employment Appeal Tribunal (EAT) held in Colomar Mari v Reuters Ltd that the question of whether an employee’s acceptance of sick pay amounts to an affirmation of the contract depends on the circumstances.
Ms Colomar Mari, a systems support analyst, was on sick leave from May to October 2008 with stress, anxiety and depression. She said this was the result of an unreasonable workload, of being managed by someone with an abrasive management style and being subjected to unwanted conduct which amounted to sexual harassment.
When she returned to work she found her workload had been reallocated and was subsequently asked to do work below her level. After she was refused access to the system for something well within her expertise, she relapsed and was signed off work again from 24 August 2010. On 13 October she wrote to her employers saying that she felt she had been treated very unfairly by management and her colleagues. In particular that she had been prevented from taking on positions of responsibility and had not been provided with the same opportunities as other colleagues. She added that she was not well enough to deal with the situation but that she would be in contact again. She resigned on 8 April 2012 more than 19 months after she went off sick.
She brought a claim of constructive dismissal, among other things. Reuters argued that the delay in resigning meant that she had affirmed her contract. Ms Colomar Mari argued that she was in such a bad way throughout this period that she could not contemplate terminating her employment relationship and then lodging a complaint.
The employment tribunal rejected her argument that she was incapable of resigning for medical reasons and bringing a claim earlier and held that she had affirmed the contract. Although the evidence in the expert medical report made clear that it would have been “extremely difficult” for her to raise a complaint while she was unwell, the tribunal noted this was based on a one hour discussion and it had access to more extensive evidence.
The tribunal also relied on evidence which showed that she had affirmed the contract by accessing her work email system; accepting 39 weeks’ sick pay; asking to be considered for permanent health insurance; and entering discussions at a welfare meeting about her continuing employment.
The EAT dismissed the appeal, holding that the tribunal was entitled to come to the finding that she was well enough to resign. The tribunal was entitled to look at the evidence as a whole including her GP records, correspondence with the employer, her ability to access the intranet and visit her employer’s premises, coupled with her ability to travel.
Rejecting an argument that tribunals should adopt a different approach when an employee is demoted to decide if they have affirmed their contract (this was not supported by case law), the EAT agreed with the tribunal that she had affirmed it.
Although the EAT said in El-Hoshi v Pizza Express Restaurants that accepting sick pay was a “neutral factor”, the significance of doing so depended on the circumstances. So for instance, at one extreme an employee may be so seriously ill that it would be unjust and unrealistic to hold that acceptance of sick pay amounted to or contributed to affirmation of the contract. At the other extreme an employee may continue to claim and accept sick pay when better or virtually better and when seeking to exercise other contractual rights. On that basis, it concluded that the tribunal applied correct principles of law in relation to the question of affirmation.
The case is a reminder of the difficulties employees face when bringing claims for constructive dismissal.