Absence Management of Disabled Employees

Under the provisions of the Equality Act 2010 there is a duty on an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, puts a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In the case of Jennings v Barts and The London NHS Trust, Mr Jennings, a disabled employee, was dismissed on the grounds of poor attendance due to ill health.  Throughout his employment he had frequent and intermittent ill-health absences, some of which were as a result of his disability which was as a result of a mental rather than physical impairment.

The Trust had a short-term absence policy which it applied rigorously to all staff and which it applied to Mr Jennings.  As a result of the application of the policy, and following a series of meetings which were arranged but postponed due to Mr Jennings’ medical condition, or held in his absence when he failed to attend, Mr Jennings  received a first written warning.  The Trust then commenced the long-term absence procedure as Mr Jennings had gone off sick once the short-term policy had been implemented, citing that the implementation of the policy had made him even more stressed.

Although an Occupational Health assessment in January 2008  said that it would be possible that Mr Jennings would be ready for a phased return to work in March 2008, the Trust completed the long-term absence procedure and at a final stage meeting Mr Jennings’ manager formed the view that his continued absence was unfair to his colleagues, that the department was busy and that there was a real possibility that Mr Jennings might not in fact return to work as no firm date had been set.  Mr Jennings was dismissed.

Mr Jennings issued a tribunal claim for unfair dismissal and failure to make reasonable adjustments under the Disability Discrimination Act 1995 which was the relevant piece of legislation at the time.

The Tribunal found that, in this case, the PCP in question was the Trust’s short-term absence policy and specifically that the Trust did not permit unplanned intermittent absences without sanctions which would ultimately lead to dismissal.  Mr Jennings suggested that the Trust should have exempted him from this policy because of his disability.  The Tribunal felt that such exemption would not have been a reasonable adjustment.   The EAT agreed.

This is an important case for employers as it illustrates very clearly that the duty to make reasonable adjustments is simply that.  Whether an adjustment is reasonable or not will be very fact driven from case to case.  What may be a reasonable adjustment for a large employer of, say, 1000 employees or more may not be reasonable for an employer with only a handful of staff and a limited budget.  However, the findings in this case would seem to confirm that if an employer has a short-term sickness absence policy which is, in itself, fair and which it applies to all staff, then it is unlikely to be either unfair or discriminatory to dismiss someone at the end of the application of the policy even if the reason for the absences was a disability.   As a result, employers are advised to put such a policy in place and to manage all staff absences in line with the policy.  The important thing to note, however, is that if an employer ever deviates from such a policy for one or more members of staff who are NOT disabled then a disabled person may well be able to bring a claim of direct disability discrimination if it is, nevertheless, adhered to for him.  The key to the NHS’s defence was (a) that the policy was, in itself, reasonable and (b) it was applied universally and without exception.

Blowing the Whistle on False Whistle-blowers?

For those of you who don’t know much about the law on whistle-blowing (as set out in the Public Interest Disclosure Act 1998), it essentially protects  workers from detriment or dismissal if they make, in good faith, what are known as “qualifying disclosures” (usually to their employers) that, in their reasonable belief, one of the following events has occurred, is occurring or is likely to occur:

1.  A criminal offence

2. Breach of any legal obligation

3.  Miscarriage of justice

4.  Danger to the health and safety of any individual

5.  Damage to the environment

6.  The deliberate concealing of information about any of the above

The key here is that, as the law currently stands, in order to be “protected qualifying disclosures”, they need only to be made in good faith.  There is no specific requirement for the disclosures to be made in the public interest.  What this means is that an employee who, in good faith, makes a disclosure which relates to a breach of his own contract of employment (i.e. a breach of a legal obligation), such breach affecting only him, will be protected from suffering detriment or dismissal as a result.

The protection from unfair dismissal for whistle-blowers is immediate.  There is no “qualifying period” of employment before the employee can pursue such a claim and the ordinary cap on compensation which can be awarded for unfair dismissal is removed.  This has arguably made pursuing a whistle-blowing claim very attractive, especially for those who have not been working for their employer very long or whose high salaries mean that ordinary unfair dismissal compensation, being capped, would not adequately compensate them if they were unfairly dismissed.

The Government’s view, however, is that this very wide protection currently afforded to whistle-blowers is open to abuse by employees with limited service or very high salaries who suspect that they might be about to lose their jobs and hence make disclosures about alleged breaches of their own contracts of employment.  However, I have seen no evidence that any such abuse is any more widespread than the undoubted abuse by a small number of Claimants of the Equality Act 2010 which affords immediate protection from discrimination from the point of recruitment and which, too, has uncapped compensation.    It is a fear of such claims that has certainly made many of my clients overly (and unnecessarily) fearful about dismissing (for perfectly reasonable and legitimate grounds) black, Asian or other employees with protected characteristics.  However, as I tell my clients time and again, just because someone is black, doesn’t mean that he or she can’t be dismissed for misconduct or poor performance and, provided there is no other evidence of unlawful discrimination, on what basis could they pursue such a claim?  The same could be said of employees without qualifying service who might seek to pursue whistle-blowing claims.  If the employer has done nothing wrong, then the employer has nothing to fear.

Nevertheless, the Government has determined that the law as it stands does not provide enough protection for employers from spurious whistle-blowing claims and as such Clause 15 of the Enterprise and Regulatory Reform Bill will amend the Employment Rights Act 1996 so that qualifying disclosures must in the reasonable belief of the worker be made “in the public interest”.  This will apply to all the categories of protected disclosure above.  However, the requirement for the disclosure to be made “in good faith” will be removed.

In seeking to solve one perceived problem, to my mind, the Government has created another – there will undoubtedly be endless litigation seeking to determine exactly what is meant by “in the public interest” given that breaches of an individual’s’ contract of employment may well have an element of public interest and it will also place an extremely onerous burden on the employee, particularly in the case of the employee without legal representation.   Hardly likely to promote the culture of openness that the Government says it is seeking, particularly in light of the recent problems with the NHS.

 

 

 

 

 

 

 

 

Employment Tribunal Fees

Finally, this summer, (probably July), fees will be introduced for Employment Tribunal claims.  In my view these have been a long time coming.  Long gone are the days when Employment Tribunals were places where individuals could easily represent themselves and where the maximum sums being claimed were relatively low.  These days employment legislation is significantly more complex than in the past and the tribunals are over-stretched.

Although the introduction of fees is no longer being promoted by the Government as a way of dissuading those with weak claims from pursuing them, but rather as a way of lessening the cost burden to the tax payer, it will no doubt result in a significant reduction in the number of weak and spurious claims brought, which is no bad thing .

Many people will no doubt argue that the introduction of fees is wrong when tribunal claims are most frequently brought by those who have lost their jobs (and hence their income) and are therefore most in need of free access to justice.  I do have some sympathy for that view,  however, there have always been issue fees for proceedings in the Civil Courts and this hasn’t deterred people from pursuing their claims.  I cannot see why the Employment Tribunals should be any different.    Furthermore, there will be a system for remission of fees for those with very low incomes and who satisfy other criteria.  As a lawyer who has spent over 13 years representing both Claimants and Respondents, it is apparent to me that a significant number of claims are brought simply because the Claimant has nothing to lose and might get a pay off just because he or she has issued proceedings.  I am therefore very much in favour of anything  which may serve to deter the pursuance of such claims.

Similarly, anyone with a really meritorious claim who doesn’t qualify for a remission of fees should be able to find the means to pay the issue fee, especially as such money will be recouped either upon settlement or at the end of the trial in the likely event that the claim will succeed.  Given that the introduction of fees should reduce the number of claims pursued, the time for cases to come to trial should reduce, with most simple 1 day trials being heard or settled within 6 months of the date of issue.

The fees will be as follows:

• level 1 claims (i.e. the very straightforward ones such as unlawful deductions from wages etc) – £160 issue fee; £230 hearing fee
• level 2 claims (all other claims) – £250 issue fee; £950 hearing fee
• Employment Appeal Tribunal – £400 appeal fee; £1,200 hearing fee
• there are several other fees, eg £60 for an application to dismiss following settlement and £600 for judicial mediation

You can find more information here:  https://consult.justice.gov.uk/digital-communications/et-fee-charging-regime-cp22-2011

Check-list for Employees on use of E-mail and Social Media

Below is a check-list of things for employees to consider when using e-mail and social media:

Reputational risks

What you write in e-mails or on the internet could seriously damage your own or another person’s reputation, you could lose your job and you and your company could be sued, fined or even imprisoned.

Stop and think before you click

• Anything written in an e-mail has the potential for public exposure (for example, if the e-mail is forwarded to others).
• Posting on the internet is essentially making a public statement (for example, when commenting on social media sites, blogs or other electronic forums).
• Failing to take care about what you write can have serious personal, disciplinary and financial implications.
• Even if you are e-mailing or using other forms of online communication in your own time, if you refer to people at work or work related matters, you and your company could get into trouble.

E-mails and internet postings can be used in legal proceedings

• E-mails and internet postings can be used against you or your company in legal proceedings, disciplinary meetings or other regulatory investigations.
• Never delete e-mails relating to a legal dispute or investigation or potential dispute or investigation.

It is very difficult to delete e-mails and online postings

• Simply deleting e-mails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.
• What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers and colleagues.

Do not be hurtful or spread rumours

• Never send e-mails or post content online that could be thought of as obscene, racist, sexist, bullying or hurtful.
• Never lie, exaggerate or make a false or inaccurate statement about another company or person. You could be sued even if an e-mail was only sent to one person.
• Forwarding an e-mail can be just as serious as writing the original – you could be sued even if the original was sent or forwarded to only one person.

 Take care with confidential information

• Where possible, avoid sending confidential information (such as confidential intellectual property or trade secrets) by e-mail. Take legal advice on how the information can be best protected.
• Any e-mail containing confidential information should be clearly marked as “confidential”.
• If you receive an e-mail that contains another company’s confidential material (for example, a company’s trade secrets) and the e-mail was not part of a legitimate business transaction, you should take legal advice immediately. 

Do not make a contract by mistake

• A legally binding contract can be made by a simple exchange of e-mails.
• Make it clear if you do not intend the e-mail to be binding.

Do not copy someone else’s work

• Only use or attach other people’s work to your e-mails if you have permission or you know it is not protected by copyright or other intellectual property rights (for example, trade mark rights). This includes photographs and music.
• Do not assume that work you find on the internet is free to use.

Do not send or view offensive or unknown material

• Monitor what arrives in your inbox, especially if you do not recognise the sender or the title of the e-mail seems odd.
• If there is a risk that an e-mail may contain a virus, do not open it and inform the IT department immediately.
• You could be disciplined or even dismissed for forwarding inappropriate e-mails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

Avoid unproductive usage

• Most businesses allow light personal internet and e-mail usage as long as it does not interfere with your duties. However, excessive, unproductive usage is not permitted and may be treated as gross misconduct.
• E-mails can often be a waste of time. Think carefully before copying someone in on an e-mail, especially if there is a long chain of e-mails attached.

Social Media Policies – Application and Impact

Two recent cases concerning the use of social media by employees highlight the importance for employers of having a clear policy on the use of such public forums by their employees.

In the first, Smith v Trafford Housing Trust, the High Court  held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct.

Mr Smith was employed by the Trafford Housing Trust and he was contractually bound by a code of conduct.  This code made clear that:

1. employees must show commitment to the aims of the Trust and have regard to the need to maintain a positive image for the trust;

2.  employees must act in a non-confrontational, non-judgmental manner with customers and colleagues; and

3.  employees must not engage in activities which might bring the Trust into disrepute, either at work our outside work, including by making derogatory comments about the Trust or engaging in unruly or unlawful conduct on sites such as Facebook.

He was also bound by the Trust’s Equal Opportunities Policy.  This policy stated that colleagues and customers should be treated in a respectful and non-judgmental way and that employees should not engage in any conduct which would make another person feel uncomfortable, embarrassed or upset.

Mr Smith used Facebook and had 45 “friends” who were colleagues.  On his Facebook profile he identified himself as a manager of Trafford Housing Trust and described himself as a “full on charismatic Christian”.

On 13th February 2011, he posted a link on his wall to a BBC news article, “Gay church ‘marriages’ set to get the go-ahead”.  He added his own comment after the link which read “an equality too far”.

His colleague, Ms Stavordale, saw the link and Mr Smith’s comment and asked “Does this mean you don’t approve?”

Mr Smith replied  “no, not really, I don’t understand why people have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”

As a result of these comments, Mr Smith was disciplined and was found guilty of gross misconduct.  He was demoted rather than dismissed and this was held to be a breach of contract.

The decision of the Court was summarised as follows:

1.  The postings were not capable of bringing the Trust into disrepute.  No reasonable person would think that he was expressing views on the Trust’s behalf.  While a Facebook account was capable of being used for work-related communications, Mr Smith’s Facebook wall did nothing of the sort.  While there was potential for the expression of views causing distress to employees to bring the Trust into disrepute, the moderate expression of Mr Smith’s views about gay marriage on his personal Facebook wall at a weekend out of working hours could not lead a reasonable reader to think the worst of the Trust for having employed Mr Smith.  The court added that “the encouragement of diversity in the recruitment of employees inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views”.

2.  The obligation not to promote religious beliefs did not extend to Mr Smith’s Facebook wall irrespective of the fact that 45 of his Facebook friends were work colleagues.

3.  A difference of views is bound to cause upset, but that is the price of freedom of speech.  It was held that Mr Smith had not failed to treat his colleagues with dignity or respect or acting in any way liable to cause offence.  Viewed objectively, Mr Smith’s postings, either themselves or the manner in which they were expressed, were not judgmental, disrespectful or liable to cause offence.

This decision affirms an employee’s right to privacy, viewing Facebook as a social and personal medium, unless the context suggests otherwise (c.f. Novak v Phones 4U Ltd below).  According to the court, it was clear from the employee’s Facebook page that he was not using it for work-related purposes, despite the fact that 45 of his Facebook friends were colleagues.

The EAT’s decision in the case of Novak v Phones 4U Ltd, however,  highlights the scope for comments made on social media to form part of a continuing act for discrimination purposes as such postings tend to remain in public view for long periods of time (if not indefinitely).  This differs from instances of banter in an office where, once the offending statement has been made, time starts to run for the purposes of limitation and issuing claims.  Although this was not specifically addressed in the judgment, it is an interesting point to note for possible future cases involving social media.

It is also an example of a case where the context of the postings are clearly work-related and not social or private.  In Novak, the claimant’s colleagues were using Facebook to specifically discuss and make fun of the claimant, a work colleague in relation to an incident at work.  The claimant  (an American with a disability) was a manager at a mobile phone store. He fell down the stairs at work and has been absent from work ever since. As a result of the comments, he brought claims for disability and race discrimination. In general, office banter has an immediacy which means that those participating will tend not to return to the original joke long after the event, whereas the nature of social media sites invites continual comment and dialogue.  This is what happened here.  The comments continued over a period of several months, with a gap of 7 weeks between the first set of postings and the final set.  Nevertheless the EAT held that the two sets of Facebook postings were one continuous act.  The subject matter of the postings was the claimant’s fall and his subsequent grievance.  It was therefore held that there was clearly a connection in terms of individuals, subject matter and timing of the posts and as such it was one continuing act for the purposes of limitation.

The clear message from both these cases is that social media is not always private but may be deemed so, depending upon the context of its use, even if several people from one place of work interact on it.  As such, it is absolutely vital for employers to have clear social media policies which are carefully drafted and which staff are notified of and, preferably trained on.  It is also vital that such policies are implemented and that breaches of such policies are dealt with consistently across the workplace.

In my next post I will provide a check-list of things to look out for when using e-mail and social media.

 

The Dangers of Imposing Blanket Post-Termination Restrictions Across Workforce

I frequently have clients who want me to put post-termination restrictive covenants into the contracts of employment for all their staff, irrespective of their seniority.  I always advise caution in this regard as the enforceability (or otherwise) of a restrictive covenant is based upon whether it was reasonable at the date upon which it was entered into and what is reasonable for one class of employee may not be reasonable for another.

The problems arise when seeking to enforce such covenants against individuals who have been promoted to more senior positions without entering into new contracts with the restrictive covenants being re-stated.  In many cases, when an individual is promoted within an organisation, he or she is not issued with a new contract of employment.  Instead, any changes are contained in a side letter or addendum to the original contract.  The problem of what happens in cases such as this, where restrictive covenants have been contained in the original contract prior to promotion is illustrated in a recent High Court case.

In this case, on commencement of employment, the employee was in a fairly junior position.  He had a 1 month notice period but there was a 12 month non-compete clause in his contract of employment.  The restrictive covenant clearly went beyond what was reasonable to protect the employer’s legitimate business interests given this individual’s lowly position within the company.  However, several  years later he was promoted.  Instead of issuing him with a new contract of employment, the employer simply notified him of his new position, salary and notice period (now 3 months) and confirmed that all the other terms of his previous contract of employment were remaining as before (including the restrictive covenant).

Some time later the employee resigned saying that he was going to work for a competitor.  The employer stated that if he did so he would be acting in breach of the restrictive covenant.  The employer therefore sought an injunction preventing him from doing so.  The employee counter-claimed wrongful dismissal.  The court refused the injunction on the basis that, at the date that the restrictive covenant was imposed on the employee (back in 2000 when he was in the more junior position) it was too restrictive and hence unenforceable.  The fact that it may not be too restrictive after his promotion was not relevant as the reasonableness or otherwise of the clause must be determined as at the date it was imposed.  Had the employer wished to enforce the restriction after the individual’s promotion, it needed to ensure that he entered into that restriction again.  It was not sufficient for the employer to state that the earlier restriction was still in force on the basis that it was clearly never in force as it was unenforceable!

Employers need to be very careful, therefore, to avoid issuing boilerplate contracts of employment across the workforce purely because it is simpler to do so than to tailor contracts to individual people.  However, for those who have done so, if those contracts contain post-termination restrictive covenants, make sure that new contracts (or at least new restrictive covenants) are entered into if an employee is promoted to a more senior position where such covenants are more likely to be significant to the employer.

Interns and the National Minimum Wage

Although there are, as yet, only a few decided cases on this point in the employment tribunals, a number of organisations, including Arcadia Group and an international media corporation, have reportedly settled demands for the national minimum wage (NMW) made by former interns. It would appear that such companies have heeded the warnings given last year by government lawyers that many employers were breaking NMW requirements by not paying interns and that “most interns are likely to be workers and therefore entitled to the NMW”.

In these straightened economic times many businesses offer intern-ships as a way of getting menial tasks done without having to actually pay anyone to do them.  Whilst they rely on the stream of recent graduates and school leavers who are desperate for relevant work experience to fill their c.v.s to get such work done for free, they do so at their peril as if they are not careful such interns may be able to establish that they are actually ‘workers’ and thus entitled NMW for all hours worked and there will also be a National Insurance liability as well as liability to give paid holiday.

The key to determining whether someone is truly an intern (i.e. a volunteer) or a worker (or even an employee with all the rights and benefits associated with employee status) really depends upon whether or not a contract to perform work has been entered into and therefore any business minded to offer intern-ships should ensure that there is no evidence of any binding contract between the parties which means that there must be no mutuality of obligation and no consideration given (i.e. no pay).

Any written document should state clearly that there is no intention to create legal relations between the parties.  There should be no obligations placed upon the volunteer whatsoever, only recommendations and expectations.  The wording should be such that any hours of work should be expressed as “suggested hours of work” or that “the usual commitment” expected from a volunteer is a certain number of hours per day/week.  If expenses are to be paid, then it should be clear that these are only to cover the volunteer’s expenses and do not constitute pay for work.  Further any expenses should be stated to be payable only if the volunteer performs work but that there is no obligation upon the volunteer to do so.  Whilst the business can ask the volunteer to give as much notice as possible to terminate the intern-ship, there must be no contractual notice obligations.

In order to avoid any pitfalls businesses should be very careful not to make any demands upon their interns but to simply rely on the fact that the interns want to do the work in order to improve their c.v.s and therefore are very likely to perform the work requested of them on the days and times that the business suggests they do so.

Shares for Rights

This Government seems intent on tinkering with (for ‘tinkering’ read ‘annihilating’) employment rights.  The latest idea, which is intended to be law by April 2013, is for newly hired employees to be able to trade their workplace rights, including some maternity rights, for shares.  Provided such employees accept that they may be fired at will without redundancy pay, they may be awarded shares in the company with a value of up to £50,000.  Any increase in the value of such shares would be tax free.

Clearly, flesh needs to be put on the bones of this proposal but the main issues with this which spring to mind are as follows:

1.  Not all employers are limited companies.  Surely, if the idea is to encourage business growth without the fear of litigation, the “one man bands” and business partnerships are in as much need of such encouragement as limited companies.

2.  Will the employer be obliged to purchase the shares on termination of employment and, if so, at what value?  Employees are certainly unlikely to be able to sell the shares on the open market.  Furthermore, £50,000 is significantly less than the current cap on compensation for unfair dismissal and takes no account of the uncapped level of compensation which can be awarded for other types of claim.

3.  Making employees shareholders of their employers is no bad thing as it may well improve employer/employee relations.  Should this not be something which can be implemented without eroding employment rights further?  Already employees need to be employed for two years before they can claim unfair dismissal.  Why should they be prevented from claiming it at all?  

4.  What about discrimination claims?  Does the Government intend that the issues of shares will mean employees cannot claim discrimination either?  If so, it doesn’t seem like a very good deal for employees and effectively gives employers the green light to act with impunity.

5.  Will employees be forced to take shares in return for reneging their rights?  Even if not forced by legislation, will employers be able to make the taking of shares a condition of an offer of employment?

So many questions and so few answers which, giving the proposed timing of this new legislation, is a little concerning.  

Is Anti-Discrimination Legislation in Employment Still Necessary?

I have just read a very interesting article on the notion of what denotes indirect religious discrimination in the workplace, which you can find here:  http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx

It got me thinking that, perhaps, there is no longer any real need for anti-discrimination legislation in an employment law context given that society has now moved on so much in the last 50 or so years that the notion of what is “reasonable” and “unreasonable” conduct in any given situation is almost universal.

The “reasonableness” test is already one which is used in many types of employment claim.  For example, in unfair dismissal claims, even if an employer can show that he had a potentially fair reason to dismiss someone, the tribunal still has to consider whether it was objectively reasonable for him to dismiss for that reason.

Similarly, in discrimination cases, employers have a duty to make “reasonable adjustments” to accommodate people who are disabled for the purposes of the Equality Act 2010.  Tribunals are also very experienced at considering reasonableness in this context.

For that reason, would it not be sensible to simply make legislative provision for employers to act reasonably in their decision making and conduct when hiring, employing, remunerating, promoting and dismissing employees?  Do we not now universally understand as a society what does and what doesn’t amount to fair and equal treatment?

I’d be interested to hear your thoughts on this.

Must Principal Reason for Resignation be a Fundamental Breach of Contract in Order to Found Claim of Constructive Dismissal?

The recent EAT case of Logan v Celyn House Ltd involved a claim by a veterinary nurse who resigned from her job because she was not satisfied with the response given to her by her employer when she raised a grievance.  The grievance concerned two issues.  The first was that the employee believed she was the victim of bullying.  The second was because she averred that her employer had failed to pay her contractual sick pay.  Neither grievance was upheld and she resigned claiming unfair constructive dismissal.  She stated that she resigned principally because of the bullying, however the employment tribunal decided, on the evidence, that the bullying was a figment of her imagination and because the alleged bullying was the principal reason for her resignation, her claim of constructive dismissal must fail.  It held this notwithstanding the fact that the employer had, in fact, fundamentally breached the contract of employment by failing to pay her sick pay to which she was contractually entitled.

The EAT disagreed with this judgment for the following reason:

Constructive dismissal arises when the employee resigns in response to a fundamental breach of contract by his or her employer.  There is nothing in the definition which states that the resignation must be wholly or even principally in response to such a fundamental breach of contract.  Therefore, where there is a fundamental breach of contract by the employer, it is sufficient that the employee’s resignation is only in part in response to that breach.  Based on the evidence presented in this case it was held that, whilst the employee’s main reason for resigning was the imagined bullying, she was also resigning in part because of the failure to pay contractual sick pay.  As a failure to pay contractual sick pay amounted to a fundamental breach of contract and this was one of the reasons for her resignation, then her appeal succeeded and she was found to have been constructively unfairly dismissed.

Note:  Employers should be aware that any breach related to a failure to pay contractual remuneration (whether that is wages, a contractual bonus payment, commission or contractual sick pay) is deemed to be a fundamental breach of contract and employees who resign in response to such a breach will have sound claims for both unfair constructive dismissal and unlawful deduction of wages.