Glaisyers ETL have recently advised a medium-sized company where it has successfully defended a former employee’s claims (the Claimant) for constructive unfair dismissal, unlawful deduction from wages, and breach of contract.
The Claimant was employed by the company for over 20 years and was a highly regarded and trusted member of staff.
Due to the national lockdown and in accordance with Government guidelines, the Claimant was enrolled onto the Coronavirus Job Retention Scheme (Furlough), at the end of March 2020. However, when the Claimant was advised that they should return to work on 11 May 2020, they confirmed they were not comfortable and wanted to wait for further Government guidance. The Claimant was subsequently signed off sick and did not return to work until they resigned.
During their absence period, the Claimant remained on Furlough for circa 11 months and was placed on statutory sick pay (SSP) when the Company could no longer utilise the Furlough scheme due to a pressing need for the Claimant’s services at the business.
The Claimant queried the decision to pay them SSP when previously they had received full pay during absences. As the Claimant had worked for the company for a very long period of time, he did not have any contractual terms covering sick pay. The Company also made various attempts to engage with the Claimant about their ill-health, including inviting them to consent to an occupational health assessment on numerous occasions. However, the Claimant continuously refused to consent maintaining that the Company should just accept their word that they were unfit for work.
Some fourteen months after being signed off sick, the Claimant tendered their resignation. In their resignation, the Claimant confirmed they felt there had been a repudiatory breach of contract due to the Company’s decision to place them on SSP and because of the alleged pressure that the company had placed on them to return to work.
The Claimant brought a claim for constructive unfair dismissal and also alleged that the failure to pay full pay during the sickness absence amount to a breach of contract and unlawful deduction of wages, and they claimed for the difference between SSP and full pay.
We advised the company throughout the case and attended a two-day final hearing with the company, accompanied by counsel, and achieved a complete dismissal of the Claimant’s claims against the company. As a result, no damages were awarded to the Claimant; a resounding success.
With regards to the Company’s decision to place the Claimant on SSP, as there were no contractual terms covering this, the Judge needed to consider whether there was a breach of an implied term. The Judge held that the Claimant’s previous absences, in which they received full pay, were insufficient to amount to a custom and practice, and therefore dismissed this element of the claim.
In relation to the Claimant’s claim that the company had placed undue pressure on them to return to work by encouraging them to attend an occupational health assessment, the Judge found that the amount of correspondence did not amount to pressure. Furthermore, whilst the Judge accepted that the Claimant was not obligated to provide their consent to an occupational health assessment, the company were entitled to ask for such information to assist them with rehabilitating the Claimant back to work and/or provide a time estimate for recovery so the Company could plan for the future, for example by hiring someone to work on a part-time basis.
On the basis of these two findings, it followed that the claims for breach of contract and unlawful deduction of wages were also dismissed in their entirety.
“With a special mention to Gemma Wilson, we have nothing but praise for Glaisyers ETL. Gemma’s professionalism and dedication to our matter was outstanding. She was easy to contact, prompt in responding and very knowledgeable. She consistently instilled the Company with confidence and provided commercial and accurate advice throughout. The Company cannot recommend Glaisyers ETL enough.”
If you would like any assistance drafting contracts of employment, advice on managing employees long term sickness absence (including referrals to occupational health experts) or guidance through Employment Tribunal proceedings, please contact Gemma Wilson at Glaisyers ETL.