The Claimant worked as a systems support analyst from 1 October 2004. She was absent from work with stress, anxiety and depression for periods in 2008 and 2010 until she resigned on 8 April 2012. The Claimant issued a claim in the Employment Tribunals for constructive dismissal. She cited the fact that she had effectively been demoted as the work she was given was below her level of expertise. The Respondent argued that the Claimant had affirmed this alleged breach.

The Tribunal agreed with the Respondent. The Claimant argued that she was too ill to resign whilst she was absent from work. The Tribunal considered the fact that the Claimant had engaged in communications with her employer and had sought legal advice. It concluded that if she was able to take these steps then she was able to resign and claim constructive dismissal but she had chosen to delay. The Tribunal also considered the experts report which provided that her depression was severe but found that this contradicted the fact that the Claimant’s GP had prescribed the lowest dose of medication and had diagnosed her depression as mild.

The Claimant argued in the alternative that she had done nothing to affirm the breach. The Tribunal, reviewing the law on affirmation cited previous case law confirming the position that affirmation may be implied from the employee’s conduct but that delay of itself does not necessarily constitute affirmation. The Claimant had requested to be considered for permanent health insurance, she discussed her employment at meetings, accepted sick pay and requested access to work email. The Tribunal found that this constituted implied affirmation.

The Claimant appealed. The EAT dismissed the appeal. The Tribunal took the correct approach in considering all of the medical evidence when determining the effect of the Claimant’s health on her ability to resign. The EAT held that the significance of an employee accepting sick pay will depend on the specific set of facts. It will depend largely on the extent of the employee’s ill health but the Tribunal had correctly considered the tests relating to affirmation.

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