This is a useful case to re-cap on the issue of affirmation, particularly in respect of employees who are on long-term sick who may be threatening legal proceedings to avoid a capability dismissal.
Ms Mari began working for Reuters in 2004. She went off sick with numerous symptoms including stress and depression throughout her employment and she eventually resigned in 2012. Following her resignation, Ms Mari issued a claim for, amongst other things, constructive dismissal. In order to issue such a claim, Ms Mari had to establish that her employer had fundamentally breached her contract of employment and she argued that they had done this by continuously giving her work that was below her level of expertise (i.e. she had effectively been demoted).
In the ET, Ms Mari argued that despite the fundamental breach by her employer, she was in such a bad way when she was off sick, that she was simply too ill to resign. The ET rejected this argument on the basis that during her time off sick, she was still able to engage in coherent email correspondence with her employer regarding other aspects of her contract.
The ET therefore naturally concluded that had she wanted to, she was well enough to resign, despite being off sick. Consequently, in failing to do so, she had effectively affirmed the alleged breaches of her employer.
The ET also rejected Ms Mari's alternative argument that apart from the delay in resigning, she had done nothing to affirm her contract. The ET held that although the delay in itself did not affirm the contract, affirmation was implied by her conduct. It held that she had affirmed her contract by:
- repeatedly requesting access to and using work email while she was off sick
- accepting 39 weeks' sick pay
- requesting to be considered for permanent health insurance
- discussing her continued employment at disciplinary and welfare meetings
In short, the ET found no evidence that Ms Mari genuinely believed that she had rejected her contract of employment due to the alleged breach by her employer. The EAT agreed.
The EAT held that the material question was whether Ms Mari resigned in response to her employer's alleged breach of contract and given the delay, as well as her conduct, it decided that she had not.
Ms Mari argued that accepting sick pay was a "neutral factor" with regard to affirming her contract. In respect of receipt of sick pay, each case will turn on its own facts and so the significance of an employee accepting sick pay is one that needs to be treated with caution. On one hand, an employee may be so seriously ill that it would be unjust to suggest that it constituted affirmation of a contract. However, as in the case of Ms Mari, when the receipt of sick pay is coupled with taking positive steps to exercise other contractual rights, it is likely that this will be considered to amount to affirmation.