In Colomar Mari v Reuters Ltd UKEAT/0539/13, the EAT considered whether an employee who had waited 18 months before resigning and accepted contractual sick pay during this period could claim constructive dismissal.
Ms Mari was employed by Reuters as a systems support analyst. Shortly after going on sick leave, she wrote to Reuters alleging that it was in fundamental breach of her employment contract and that she would deal with the situation when she was well enough to do so. She then remained on sick leave for 18 months during which time she received contractual sick pay, requested access to her work e-mail and attended discussions about her continued employment. She then resigned and brought a claim for constructive dismissal, alleging that she had been too ill to resign sooner. The EAT held that she was not entitled to bring such a claim because in the 18 month period leading to her resignation, her conduct amounted to an affirmation of her employment contract (in other words, she had behaved as if Reuters had not committed the alleged fundamental breach). It did not accept that Ms Mari could not have resigned earlier. It also stated that, although receipt of contractual sick pay had been a relevant factor in this case, it would not necessarily be so in every case.