Sickness Absence and Constructive Dismissal
Does claiming sick pay constitute acceptance of an employee’s contract of employment, thereby preventing a successful claim for constructive dismissal?
Possibly, according to the Employment Appeal Tribunal (EAT) in the case of Mari –v- Reuters Ltd. Claiming sick pay is not necessarily a ‘neutral factor’ as was determined in the case of El-Hoshi –v- Pizza Express Restaurants, but one which may be construed as affirming an employee’s contract of employment.
In Mari, an employee brought proceedings against her former employer for sex discrimination, constructive unfair dismissal and notice pay. Ms Mari was signed off work with stress, anxiety and depression between May and October 2008 and from August 2010 until she later resigned in April 2012. In October 2010, Ms Mari wrote to her employer, Reuters Ltd, complaining that she had been given work beneath her level of expertise to perform and as such considered herself demoted. She claimed the demotion was discriminatory although she was too ill to deal with the issue at the present time and would do so once fit.
Reuters Ltd argued that Ms Mari’s subsequent acceptance of contractual sick pay affirmed her contract of employment. The EAT agreed, but stated that other factors, including requests by Ms Mari to be given access to her work e-mails, and that throughout her period of absence, she had coherently communicated with her employer through e-mail, contributed to their decision.
Accordingly, it is not always the case that an employee who accepts contractual sick pay will be taken to have affirmed their contract of employment by virtue of that fact alone. As confirmed by the EAT, the significance of accepting sick pay will depend on the circumstances.
Employees should however be aware that by accepting sick pay, whilst seeking to also exercise other contractual rights, they may be affirming their contract and thus, prejudicing the success of any constructive dismissal claim.