Forbes v Salamis (Marine & Industrial) Ltd, EAT, 24 March 2004

No acceptance of employer’s breach by receipt of sick pay: Walker was appointed as Forbes’ line manager, resulting in Forbes feeling humiliated. It triggered a stress-related illness, causing Forbes to be absent from work. Five months later, as his sick pay was about to end, Forbes agreed to return, but only to work his notice.

He learned that Walker was leaving, and decided to withdraw his resignation. But the company wouldn’t let him, and Forbes brought a claim of constructive unfair dismissal.

The tribunal held that he had not given any indication when on sick leave that he was working under protest. And he had been prepared to continue working there once he discovered that Walker was leaving. Forbes appealed.

It was upheld. The EAT did not consider the drawing of sick pay over the relevant period indicated affirmation of the contract. And Forbes had only offered to return once he discovered Walker had resigned.

Therefore, the EAT was satisfied that Forbes was not behaving in a way inconsistent with an intention to treat the contract at an end.

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