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When accepting sick pay means you can't be too sick to resign

10 February 2015 #Employment


The EAT has upheld an employment tribunal's decision that an employee had affirmed her employment contract and could not, therefore, succeed in a constructive dismissal claim.

On the facts of the case, the tribunal was entitled to reject the employee's claim that she was too ill to resign for 18 months after she formally complained of her employer's alleged fundamental breach of contract. The tribunal had correctly applied the legal principles on “affirmation of contract” as set out in the leading case of W E Cox Toner (International) Ltd v Crook. The EAT held that, whether an employee's acceptance of sick pay amounts to affirmation will depend on the particular facts. In this case, the employee's acceptance of 39 weeks' sick pay combined with other aspects of her conduct meant that she had affirmed the employment contract. (Colomar Mari v Reuters Ltd UKEAT/0539/13.)

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