EAT UNFAIR DISMISSAL – CONSTRUCTIVE DISMISSAL
The claimant had been employed by the respondent’s predecessor for some 47 years but was TUPE transferred to employment by the respondent in 2015. The terms and conditions of his employment stated clearly that he would be entitled to full pay when absent from work due to sickness or injury. The respondent refused to acknowledge that entitlement and, when he was absent through illness, wrote to him stating that he would be paid only Statutory Sick pay. The claimant resigned and claimed constructive unfair dismissal. The respondent appealed.
Held : Appeal dismissed because
(1) There was no force in the respondent’s first ground of appeal, that the tribunal misunderstood or misapplied the UK Supreme Court decision in Autoclenz Ltd v Belcher and Others [2011] UKSC 41. The respondent had failed to articulate a proper basis on which the clearly expressed contractual term had come to differ from the parties’ understanding. The tribunal had not focused merely on a ‘sham’ situation but also on the absence of any argument of error or variation, in finding that the contractual terms prevailed.
(2) The second ground of appeal was misconceived. The Tribunal had not failed to carry out an objective assessment of all of the circumstances before deciding whether the respondent was in fundamental breach and had followed correctly the approach required by the case of Eminence Property Developments Limited v Heeney [2010] EWCA Civ 1168. It had been entitled to find that the respondent’s actings illustrated an intention not be bound by a fundamental term of the contact in relation to pay.
A cross appeal in relation to arithmetical error was well founded and was allowed.
Citations:
[2017] UKEAT 0014 – 16 – 0808
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601892