Contractual Sick Pay

Employment Law – Constructive Dismissal – Contractual Sick Pay

The case of Patel v Gorai [2007] concerned the allegation of constructive dismissal by an employee and issues relating to the entitlement to contractual sick pay. The employee in this case was married to a doctor and had been employed by him as the practice manager since 1986.

In 2005, the defendant employer took over the practice. Once the take over was completed, the employments of the employee (as well as other staff members) were transferred to the employer.

Subsequently, the employer allocated the employee's duties to other employees without consulting with her in any great detail. As a result, the relationship between the employee and employer gradually deteriorated.

The employee was instructed to stay away from the practice for more than two months. The employee also took sick leave. Eventually she resigned.

The employee then presented a claim before the employment tribunal. She alleged that she had been constructively dismissed and that she was entitled to contractual sick pay. The tribunal upheld the employee's complaints, and concluded that the employer had behaved in such a way so as to destroy the employment relationship by breaching the implied term of trust and confidence.

It was also held that the employee had not affirmed that breach, and was therefore entitled to resign and claim constructive dismissal. The tribunal further found that the employee's dismissal had been unfair, and that the she had not exhausted her entitlement to contractual sick pay. This meant that there had been an unauthorised deduction.

The employer appealed to the Employment Appeals Tribunal and submitted the following arguments:

§   The manner in which the employer had dealt with the employee in the allocation of her duties to others without detailed consultation with her related only to the allocation of duties;

§   The tribunal had failed to explain its reasoning, linking its findings of fact with its conclusion that the implied term of trust and confidence had been breached; and

§   The employee's failure to comply with the procedure, following the first seven days sick absence, meant that she was not entitled to one month's worth of contractual sick pay.

The appeal was dismissed.

It was held that although further detailed reasoning could have been provided by the tribunal, it had provided sufficient reasons to demonstrate why it had reached its conclusion. Furthermore, the conclusion was permissible on the facts. It was also held that the decision was not categorised as perverse.

The factual background had been adequately set out before the tribunal, and it had correctly found on those facts that the employee was contractually entitled to full pay and not statutory sick pay during her one month sick leave.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.