Ms Colomar Mari worked as a systems support analyst for international news agency Reuters. She was absent from work for 22 months with stress, depression and anxiety, which she said was caused by excessive workload, sexual harassment and being made to work below her expertise level.

During her absence she accepted 39 weeks of contractual sick pay and asked to access the employer’s permanent health insurance (PHI) scheme. She also discussed her possible continued employment at meetings; renewed her password access to the firm’s email system three times at her own request; and travelled repeatedly to and from Spain to visit relatives, organising the flights herself. In addition, she was well enough to take legal advice and to engage in coherent email traffic with her employer throughout the absence.

After 18 months she resigned and brought a tribunal claim for constructive dismissal (see page 68). However, the tribunal ruled that she had “affirmed her contract” by her actions. The EAT confirmed that the tribunal had been entitled to rule, firstly, that she was not too ill to resign during her sick leave; and, secondly, that she had affirmed the contract.

Regarding accepting sick pay, the EAT confirmed that whether or not this will be evidence of affirmation will depend on all the facts and circumstances. At one extreme, an employee who is clearly too ill to bring a claim will not be taken to have affirmed the contract by accepting sick pay. However at the other end of the spectrum, employees who continue to accept sick pay once they are well enough to bring a claim may well be taken to have affirmed the contract.

All that can safely be said, stated the EAT, is that an innocent employee who is facing a repudiatory breach of contract will not be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period, while at the same time protesting regularly about their situation.

Colomar Mari v Reuters Limited [2014] UKEAT/0539/13/MC

www.bailii.org/uk/cases/UKEAT/2015/0539_13_3001.html