An Employment Tribunal held that the Claimant was not too ill to resign while on long term sick leave and concluded that she had affirmed the contract following alleged breaches by her employer.  The Claimant was a systems support analyst who joined the employer in October 2004. She was off sick with symptoms of stress, anxiety and depression from May to October 2008 and then again from August 2010 until she resigned in April 2012.  She brought a claim for constructive dismissal.

The employer argued that she had affirmed the contract and this was determined as a preliminary issue.  A joint expert report said that she had a severe depressive episode which would have made it difficult to raise a complaint. However, the Tribunal considered that her own GP had only diagnosed mile depression and a low dose of medication.  She continued to engage with her employer by email, took legal advice, requested assess to the work system and used it, accepted 39week’s sick pay and continued to discuss her employment at welfare meetings.  The Tribunal found therefore the she had affirmed the contract. She appealed to the EAT. The EAT dismissed the appeal and reviewed the law on affirmation by an employee while drawing sick pay. The question of affirmation was a mixed question of law and fact so the decision was not perverse.