Does an employee that brings a constructive dismissal claim against an employer affirm the contract by claiming sick pay whilst off sick?

This question was looked at by the Employment Tribunal in the recent case of Colomar Mari v Reuters.

The Claimant in this case had the role of Systems Support Analyst who resigned 19 months after going off sick with stress and depression. An employment tribunal had rejected the Claimant’s argument that she had been too unwell to resign sooner and dismissed the claim on the basis that she had not resigned in response to the breach and had affirmed the contract by remaining an employee.

The Employment Appeal Tribunal dismissed the Claimant’s appeal ruling that the employment tribunal had correctly applied the law to the facts. The Employment Appeal Tribunal referred to the previous case of Hadji v St Luke’s Plymouth in that an employment tribunal may find affirmation of the contract where an employee calls on the employer to perform its obligations under the contract after the breach. The employment tribunal found that the Claimant had done so by accepting contractual sick pay as well as other things.

It should be noted that the general principle is that if one party commits a fundamental breach of the contract, the other party can choose to affirm the contract and insist on its further performance or accept the breach meaning that the contract is at an end. If an employee wishes to rely on a breach by an employer, they must resign in response to that breach to claim constructive dismissal. The timing of the resignation is key in considering whether it was in response to the breach.

If you seek advice on dealing with employee sickness absence or defending a claim of constructive dismissal or any other claim, please contact our specialist Employment & HR department on 0845 050 1958. Alternatively please complete an online enquiry form and a dedicated solicitor will respond to your enquiry.