For a constructive dismissal claim to be deemed valid, an employee should resign promptly following their employer’s ‘repudiatory’ breach of contract otherwise they risk appearing to accept the breach and affirm the contract if they continue working and resign at a later date. After all, a repudiatory breach is one that is so serious as to undermine the entire basis for the contract. However, can an employee’s sickness absence justify a delay?
In the case of Colomar Mari v Reuters Ltd [2015] Ms Colomar Mari claimed that Reuters’ conduct (which included discriminatory conduct and removal of duties) had amounted to a repudiatory breach of her contract. Ms Mari had an initial period of absence due to the resulting stress and depression. Upon her return she continued to suffer degrading comments and her previous work had been re-allocated. She raised a grievance which was not dealt with satisfactorily and was off sick once again (suffering with depression) from 2010 until her resignation in April 2012. Ms Mari had been on sick leave for 18 months by the time that she submitted her resignation and, later, her claim for constructive dismissal. Before the East London Employment Tribunal, Ms Mari’s claim was unsuccessful. The tribunal held that her conduct during this 18 month period constituted affirmation of the contract, and such conduct included:
1. The continued acceptance of sick pay for 39 weeks;
2. Repeated requests to use and actual use of work email;
3. Repeated requests to join the permanent health insurance;
4. Discussions regarding her continuing employment with Reuters.
On appeal, the Employment Appeals Tribunal (EAT) had to consider two key issues. Firstly, was Ms Mari medically incapable of resigning from her position? This was deemed to be a question of fact. She had travelled, taken legal advice and had been involved in email correspondence during the period of her sickness absence. Ms Mari argued that she had been too ill to resign and relied upon a supporting medical report.
The EAT held that the tribunal was not bound solely by that report, but was entitled to make a judgement based upon the evidence as a whole, including Ms Mari’s other conduct (much of which would have been unknown to the relevant doctor). The EAT determined that the ET’s decision that Ms Mari had remained capable of resigning notwithstanding her illness was ‘not perverse’.
The second issue was whether Ms Mari had accepted the alleged breach of contract and affirmed the contract. The EAT confirmed that this is a mixed question of law and fact. The EAT confirmed that receipt of sick pay is not in itself an affirmation and that the essential principles are;
1. The Employee must make up his mind soon after the conduct of which he complains.
2. The delay of itself, unaccompanied by express or implied affirmation, is not enough to constitute affirmation, but it is open to the tribunal to infer implied affirmation from prolonged delay.
3. If the employee calls on the employer to perform is contractual obligations, the tribunal may conclude that there has been affirmation.
4. There is no fixed time limit in which the employee must make up his mind.
When a long delay is combined with other conduct, such as in the example above, this would be considered to be affirmation (and defeat a claim for constructive dismissal).
This case illustrates the importance of carefully analysing any delay in an employee’s resignation and their conduct preceding their resignation. Delay alone will not defeat a claim for constructive dismissal, but cumulative factors may be relied upon to imply affirmation of a repudiatory breach – which can provide a viable defence for an employer in some circumstances.
For advice on defending a claim for constructive dismissal or guidance on avoiding such claims, speak with a member of the Employment Team.