Employee Lost Right to Claim Constructive Dismissal After 18 Month Delay in Resigning

An employee who waited 18 months after complaining of her employer’s repudiatory breach of contract before resigning had affirmed her employment contract and could not claim constructive dismissal. 

In Colomar Mari v Reuters Ltd, C was off work with symptoms of stress, anxiety and depression from August 2010. In October 2010 she wrote to her employer complaining that she had been treated unfairly by management and colleagues. The letter concluded: “Please accept this letter as confirmation that I will no longer tolerate this situation and I am now considering my position. I am not well enough to directly deal with this situation or conduct a grievance. When I am well enough, I will be in contact again."

C was off work sick for the next 18 months. She received contractual sick pay for the first 39 weeks of her sick leave and then made a claim under the Permanent Health Insurance policy. She also requested access to her work email on several occasions and took part in welfare discussions about her continuing employment. 

C resigned in April 2012 and claimed constructive unfair dismissal. She argued she was too ill to contemplate resignation between October 2010 when she sent her complaint letter and April 2012. 

Her employer argued that she had lost the right to rely on any repudiatory breach on its part and could not therefore claim constructive dismissal. The employment tribunal agreed, finding that she had affirmed the employment contract. It relied on the following factors as evidence that she had affirmed the contract: acceptance of 39 weeks’ sick pay; request to be considered for PHI; repeated requests for access to work emails; and participation in discussions regarding her continued employment, such as welfare meetings.

The tribunal also found that C was not incapable of resigning or submitting a claim before April 2012. This contrasted with the view of a jointly appointed psychiatrist that she had suffered a severe depressive episode which would have made it extremely difficult for her to resign and bring proceedings. It considered it had access to more extensive evidence than the psychiatrist who had only seen C for a one hour consultation. It relied on the fact that C had communicated with her employer during her absence, was able to take legal advice, was prescribed a low dosage of medication by her GP and travelled to Spain several times a year to visit her family. 

The EAT upheld the tribunal’s decision. The tribunal had applied the principles on affirmation correctly. In addition, its conclusion that C was not too ill to resign before April 2012 was not perverse. There was ample material on which the tribunal could reject her claim that she was incapable of resigning sooner. It was entitled to look at the evidence as a whole. It had a much fuller picture than the joint expert and it was not incorrect in law to draw an inference from the GP’s low prescribed dosage of medication which contrasted with the psychiatrist’s view as to the severity of the depression. 

Acceptance of sick pay for a limited period after complaining about an employer’s repudiatory conduct is unlikely to mean the employee has affirmed the contract. However, as this case demonstrates, the longer the situation is allowed to continue without resigning, the more likely it is that the employee will do something else which indicates that they are affirming the contract. Particularly damning in this case was the fact that the employee applied for PHI, an act which was only consistent with the continuation of the contract. However, participation in welfare and return to work meetings was also accepted as evidence of affirmation. 

The employment tribunal’s decision that C was not too ill to resign earlier is perhaps surprising in light of the medial evidence to the contrary.