It seems to have been a week of dealing with on the spot resignations and mitigating potential Constructive Unfair Dismissal claims which as we know can be a 'grey' area of HR.

In a stroke of good timing I received the email below from Legal Manager Business Bulletin (so can't take the credit for it) which I thought made some useful points to consider.  So as we know it's down to the every case turns on its own facts.

Constructive dismissal happens when an employee resigns and can show that they were entitled to do so. It can only be established if:

the employer has breached the contract in a way that is serious enough to justify the resignation;
the employee has accepted the breach and has treated the contract as ended; and
the employee didn't take too long to accept the breach, as doing so could be seen as the employee 'affirming' the contract, i.e. treating the contract as continuing.

In a recent case, an employee waited 18 months to resign before bringing a claim. But did the delay mean she affirmed her contract?

Case: Colomar Mari (CM) v Reuters Ltd

CM was employed by Reuters. She suffered from stress, anxiety and depression, so was off sick from May to October 2008, and again from August 2010 to April 2012.

In October 2010, she wrote to her employer complaining that she had been treated unfairly by her colleagues and manager. The letter ended: '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.'

She remained on sick leave before resigning in April 2012. She received contractual sick pay for the first 39 weeks of her sick leave, then made a claim under Reuters' permanent health insurance policy.

During her sick leave, she asked to access her work email. She also participated in welfare meetings about her continuing employment.

Later that year, she complained to an Employment Tribunal (ET) about constructive unfair dismissal.

She claimed she had effectively been demoted when she went back to work in 2008. She was given work below her level of expertise, and she wasn't given training opportunities or a particular work area. She said that this was a fundamental breach of trust and confidence, which led to her second bout of depression and therefore her resignation. In addition, she said she was too ill to think about resigning after she sent her letter.

The ET dismissed her claim. It believed CM had affirmed her contract based on her actions, which included:

accepting sick pay;
requesting to use her work email several times;
making claims under the company's health insurance; and
discussing her continuing employment.

In addition, the ET found that she wasn't incapable of resigning before April 2012. This was despite the advice of a psychiatrist who believed CM was too ill to resign and bring a claim. However, the ET believed it had access to more evidence to judge CM's condition, as opposed to the psychiatrist who only saw her for an hour. For example, the ET noted that CM spoke to her employer during her absence, was able to take legal advice, was prescribed only a low dose of medication, and travelled to Spain several times a year.

The Employment Appeal Tribunal agreed with the ET's decision.

What this means for you

Cases regarding affirming contracts will depend heavily on the facts. A delay itself won't signal affirmation, neither will accepting statutory sick pay; tribunals will look at all the facts before deciding whether or not the contract has been affirmed.

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