Employee could not claim constructive dismissal after 18 month delay
04 March 2015
Ms Mari, a systems support analyst, was off sick from work with stress, anxiety and depression. She claimed that she had been placed under an unreasonable workload and bullying working conditions. During a lengthy period of sickness absence she accepted contractual sick pay until it expired after 39 weeks. She then resigned and claimed constructive unfair dismissal.
The EAT upheld a tribunal’s decision that Ms Mari had affirmed the contract by accepting sick pay for such a prolonged period. It held that the tribunal was entitled to find on the facts that Ms Mari had not been too ill to resign. Applying the leading case on affirmation, WE Cox Toner (International) Ltd v Crook  IRLR 443, the EAT noted that the question whether or not the conduct of the innocent party amounts to an affirmation of the contract is a mixed question of fact and law and that the ET had properly directed itself on the law.
This case is a useful reminder of the law on affirmation of contracts. Each case will turn on its own facts. Here, the employee waited for a very long time before resigning and, on the evidence, the tribunal was