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Constructive unfair dismissal: how long can you delay?

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With the “fit-note culture” that we seem to be in, see if the following constructive unfair dismissal case sounds familiar: A disgruntled employee says that their employer has done something so horrendous that it has made it unbearable for them to work for them.

What do they do?

You guessed it, they go on sick leave.  This can be used by some employees in order to “buy” themselves time, maybe to consider their options, look for another job etc…But can they do this and still resign later and try to claim constructive unfair dismissal?

Interestingly, in Colomar Mari v Reuters the Employment Appeal Tribunal (EAT) has said maybe not.

This decision illustrates this row back of control to the employer from the employee and is worth finding out about.  Read on for more details…

The constructive unfair dismissal case

In this case, Ms Mari was a systems support analyst who went on sick leave in August 2010. In October 2010, she told her employer that she could no longer tolerate the situation at work and was considering her position with them.

She stayed on sick leave for a further 18 months before resigning from her job.  And you guessed it, she brought a claim against her ex-employer for constructive unfair dismissal (i.e. that she was treated so badly by her ex-employer in 2010 that she had no alternative than to resign (18 months later!)).

She tried to explain the delay of 18 months by saying that she was too ill to resign at that stage.

The question was whether Ms Mari was allowed to bring a constructive unfair dismissal claim.  In order to bring a constructive unfair dismissal claim, the ex-employee has to show that their ex-employer committed a fundamental breach of contract (in other words the ex-employer behaved so unreasonably they had no choice but to leave).  Crucially the ex-employee cannot delay for too long before leaving otherwise they will have accepted (i.e. affirmed) the ex-employer’s behaviour and the contract continues.

The decision

The ET decided that Ms Mari was not too ill to resign.  This was very much fact-specific as she was only on low dosage medication and had been able to travel overseas twice in that period.

More interestingly for us, the ET also decided that her actions during that 18 months suggested her employment contract was continuing (i.e. she had affirmed her contract).

The elements that the ET considered in this case that indicated that she had affirmed her contract that during her 18 months of sick leave were:

  • She had accepted 39 weeks’ sick pay from her ex-employer;
  • She made repeated requests for, and the use of, access to her work email account;
  • She made a claim under her ex-employer’s permanent health insurance; and
  • She had discussions with her ex-employer about her continuing employment.

Therefore, she was not allowed to continue with her constructive unfair dismissal claim.

Really?

Possibly shocked at such an employer-friendly decision (or possibly not!), Ms Mari appealed the ET’s decision to the EAT. However, the EAT upheld the ET’s decision.

The EAT said that the acceptance of sick pay would not automatically mean that an employee had affirmed their contract. But that it would depend upon the facts of every case.

They took two extreme examples:

At one extreme an employee that is so seriously ill that it would be unfair to say that just because they took sick pay that they had affirmed their contract. They compared it to another employee who takes sick pay when they are almost better and/or who takes the benefit of other rights under the contract. In this situation, it is more likely that the contract would be affirmed.

What does this mean for you?

This case is good news.  It means that the constructive unfair dismissal claim is not an open door and puts a further hurdle in for employees in this situation to what is already a hard claim for employees to bring, as the burden of proof in on them.

It doesn’t mean that any employee who takes sick pay will be barred from bringing a constructive unfair dismissal claim but does give employers another tool in their tool belt to rebut or deter such claims.

The best advice here would be to keep in contact with your employees when they are off sick, don’t just forget about them.  If you keep the lines of communication open then first, you are likely to bottom out any such issues but also, as here, you may start to erode any potential constructive unfair dismissal claims.

Is this perhaps a yellow card for sick employees?

If you would like any further advice on this topic or any other aspect of employment law, please do contact our Employment and HR team for a confidential chat.

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