Newsflash: Too sick to resign?

Summary: Did an employee who had spent 18 months on sick leave before resigning delay too long to bring a claim of constructive dismissal?

Yes says the EAT in Colomar Mari v Reuters Ltd available here.

Facts: The employee was a systems support analyst for Reuters who resigned after being off sick with stress, anxiety and depression for 18 months. She brought a constructive dismissal claim in the Tribunal. The employee accepted that the treatment to which she objected took place before the commencement of sick leave and therefore needed to justify her delay. She said:

1. I was too sick to properly consider my position; and
2. I did not ‘affirm’ my employment contract as I was off sick.

The Tribunal rejected both these arguments. In particular, as during the 18 months she was off sick, the employee organised extensive travel plans and managed to take legal advice. Moreover the employee accepted sick 39 weeks of sick pay.

The EAT rejected the employee’s appeal. The EAT agreed with the Tribunal’s analysis and found that the employee had affirmed her contract by calling on Reuters to perform its obligations under the contract to pay contractual sick pay and also requesting PHI.

Implications: Good confirmatory news for employers that employees who seek to claim constructive dismissal cannot delay too long. A short period of sickness is acceptable before resigning, but a long delay is not. Claiming sick pay can also be used to show that the employee has not ended the contract.