Constructive Dismissal Claims and Sick Pay – Understanding the Risks

In the case of Colomar Mari v Reuters back in 2015, both the Employment Tribunal and Employment Appeal Tribunal found that a delay in resigning while off sick meant that the employee had accepted the employer’s conduct and she lost her chance of a successful constructive dismissal claim.

If you are considering bringing a claim against your employer, here’s a brief guide on how constructive dismissal works.

Constructive dismissal is where your employer’s behaviour has made your working life so difficult that you feel they have effectively dismissed you.  If you intend to claim for Constructive Dismissal, it is very important that you do it correctly.  Most claims are unsuccessful because they don’t follow all the steps outlined below.

• You must be able to establish that there has been a fundamental breach of contract on the part of your employer.
• This breach must be sufficiently serious to justify your resignation – if in doubt take legal advice.
• You should reject the breach and treat your contract as though it has ended.  It is important not to give your employer any indication that you have accepted the situation.
• Your resignation should be prompt – if you stay for too long after the breach, your employer can argue that this counts as your acceptance of the treatment.
• You must lodge a claim for constructive dismissal at an employment tribunal within three months of the termination of your contract, but ideally as soon as possible.

Drawing sick pay doesn’t necessarily mean a constructive dismissal claim will fail.  The key thing is to avoid agreeing to the breach of contract (see bullet 3 above).  An employment tribunal will look at all the facts and make a decision, which is why it is crucial to get good advice.

In the Colomar Mari case, the employment appeal tribunal said that an innocent employee facing a fundamental breach shouldn’t be assumed to have agreed to the breach if they draw sick pay for a short period of time while protesting about their position.

On the other hand, if the employee makes contractual demands of the employer (such as requesting payouts under medical insurance while being off sick), or stays on sick pay for a long time without raising any issues then this strongly indicates that they have agreed to remain employed and accepted the breach.  Any subsequent constructive dismissal claim is therefore likely to fail.

We understand that this is a very tricky situation.  On the one hand, you may want to hang on and think carefully before making any decisions about your position and resigning but on the other hand, for a successful constructive dismissal claim you must resign promptly.

If you are facing this decision, we would strongly suggest that you take legal advice before resigning.  Constructive dismissal cases are high risk, coupled with the fact that you will be out of work without any income.

At Backhouse Solicitors, we are experts in constructive dismissal cases and understand how stressful it can be.  If you are an employee who feels forced into resigning by the behaviour of your employer, then don’t suffer in silence – contact us to book your free 30-minute consultation with one of our expert employment law solicitors.

Tel:          01245 893400
Email:     info@backhouse-solicitors.co.uk
Visit:       17 Duke Street, Chelmsford, CM1 1JU
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