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Constructive dismissal: Three-month sickness absence not affirmation

This report relates to 1 case(s)

Key Points

In El-Hoshi v Pizza Express Restaurants Ltd the EAT holds:

  • An employee who has made a protected disclosure and is then subjected to a repudiatory breach of contract as a punishment for it, does not acquiesce in the breach by delaying three months before letting the employer know that he or she regards himself or herself as constructively dismissed, where during that period the employee is absent through sickness and submits regular sick notes.
  • Being on sick leave and submitting sick notes merely confirmed the existence of the contract of employment until the employee's sending of a letter before action. The original contract could continue during that sick leave without the employer's breach being affirmed.
  • In deciding whether there has been affirmation of the breach, the tribunal must look at the facts or circumstances of the conduct of both parties, as well as at the applicable law, and the mere passage of time will not be sufficient in itself to constitute acquiescing in or affirmation of the breach.