The interaction between constructive dismissal and sickness

We’ve probably all come across situations where an employee has gone off
work with symptoms of stress, anxiety and depression but subsequently
alleges that they have been unfairly treated by management and/or
colleagues. Such correspondence might include the following sort of
sentence: ‘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’.

Reuters faced precisely that situation from one of their employees named
Colomar Mari during the employee’s sick leave. She was paid full pay for 39
weeks before then making a claim under Reuters’ permanent health insurance
policy. She continued to request access to her work email account on several
occasions and attended welfare meetings to discuss her continuing
employment. Subsequently she commenced proceedings against Reuters for
constructive unfair dismissal.

Her claim was that she had been effectively demoted, given work well below
her level of expertise, was passed over for training opportunities, etc. She
argued that these events amounted to a fundamental breach of trust and
confidence which triggered her absence and ultimately her resignation. She
claimed she had been too unwell to contemplate resignation between October
2010, when she had sent that letter of complaint, and April 2012.

Reuters, as employer, argued that her claim should not succeed on the basis
that she had affirmed her contract through her conduct.

In order to successfully establish a constructive dismissal, there has to be
a repudiatory breach of contract on the part of the employer which is
sufficiently serious to justify the employee resigning. The employee who is
resigning has to accept the breach and treat the contract as at an end,
resigning in response to that breach. The employee must not delay too long
because it is always open to the innocent party in any situation to waive
the breach and instead affirm the contract i.e. treat it as continuing.
Affirmation of contract can be express or implied. It will be implied if the
employee has called on the employer to perform their side of the bargain
under the contract of employment where there is an indication from the
employee that they intend that the contract continues. In this particular
case the Employment Tribunal looked at the fact that CM had accepted 39
weeks’ sick pay, made requests to use the work email and to be considered
for PHI as well as attending the welfare meetings and ruled, as a
preliminary issue, that she had affirmed the contract and therefore
dismissed her constructive dismissal complaint. This went on to be confirmed
by the Employment Appeal Tribunal.

This case illustrates that, from an employee perspective, if they wish to
bring a complaint then they are going to need to act quickly and not delay.
Of course the Tribunals may accept that somebody is too ill to resign –
those cases are likely to be exceptional rather than the rule.