In this case, the EAT had to consider whether an employee's delay in resigning while she tried to resolve a dispute about contractual sick pay meant that she had affirmed her contract of employment, and was therefore prevented from claiming constructive dismissal.
Facts
The claimant, Dr Barry, has been a GP since 2006. She started employment with the respondent, a partnership of NHS GPs, on 16 April 2018. She was unwell in February 2019, and absent on a number of occasions. From 28 August 2020, the respondent stopped paying Dr Barry sick pay. At this point, she had received sick pay between 16 March 2019 and 28 August 2020, a period of around 17 months.
Dr Barry's entitlement to contractual sick pay was raised on her behalf by her trade union representative on 11 September 2020 by email, and again more forcefully by letter on 26 November 2020. The employment tribunal accepted that Dr Barry's entitlement to sick pay was complicated. Dr Barry said she was ready and wanted to return to work on 26 December 2020 but, at the respondent's suggestion, she took annual leave and was paid holiday pay. From 15 February 2021, Dr Barry said that she was fit to return to work but was not prepared to do so until the sick pay issue had been resolved, and she was reserving her position. There was further correspondence about her sick pay. On 16 February 2021, the practice manager told Dr Barry's trade union representative that the respondent owed Dr Barry slightly over £9,000 in sick pay, but on 26 March 2021 Dr Barry was told this would not be paid.
Dr Barry resigned on 6 April 2021. She brought a constructive unfair dismissal claim. The Tribunal accepted that the withdrawal of contractual sick pay was a repudiatory breach of an express term, but held that Dr Barry had affirmed her contract of employment by delaying her resignation.
Dr Barry appealed successfully to the EAT, who substituted a finding of unfair dismissal. It was key to the EAT's decision that:
A long delay alone does not amount to affirmation, particularly where the employee is continuing to press for a remedy, is absent due to ill health, or is not performing any work.
- Affirmation depends on what the employee says or does, not simply on the passage of time.
- The tribunal had overlooked several significant factors pointing away from affirmation, including the ongoing dispute, the employer’s statement in February 2021 that sick pay might be owed, and its own finding that Dr Barry was not prepared to return to work until the issue was resolved.
- The fact that a trade union representative was involved was not evidence of affirmation.
What does this mean for employers?
This decision reiterates that mere delay is not enough to successfully establish that an employee has affirmed their contract. What is said and done by each party during the period leading up to an employee's resignation will be carefully analysed in each case. Here, the employer seemed to accept six weeks before the resignation that sick pay was owed, and Dr Barry resigned within less than two weeks of it becoming clear that the dispute would not be resolved.
