Two “wrongs” don’t make a right
We’re sure that many of you reading this will have come across the scenario where an employee, facing disciplinary action, claims they are unfit to work and, moreover, unfit to attend a hearing.
That’s exactly what happened in Singh v Metroline. Despite Mr Singh attending an appointment with occupational health who gave no indication that he was feigning illness, Metroline thought that Mr Singh was making it up in order to avoid attending the disciplinary hearing. Mr Singh was entitled to full company sick pay under his contract, but in an attempt to persuade him back to work and attend the disciplinary hearing, Metroline paid him only statutory sick pay. Mr Singh resigned and claimed constructive dismissal. A constructive dismissal occurs when an employee resigns in response to a fundamental (serious) breach of contract by their employer. There was clearly a breach of contract here – the failure to pay company sick pay – but was it fundamental?
The Employment Tribunal said no. It thought that, for a breach to be fundamental, the employer must intend to no longer be bound by the contract in a way that meant that they did not want the employment relationship to continue. Mr Singh appealed, and the Employment Appeal Tribunal agreed with him. The correct test was whether the employer’s failure to comply with the terms of the contract was so serious that it went to the root of the contract. The Employment Tribunal found that under Mr Singh’s employment contract, Metroline had the right to suspend Mr Singh without pay if it thought his absence was not genuine, but it didn’t take this step. Mr Singh’s contract also permitted company sick pay to be withheld where, after investigation, absence was found not to be genuine. However, the company had carried out no investigation and deliberately chose to withhold company sick pay without any basis for doing so. There was therefore a breach of contract and that breach was fundamental. The Employment Appeal Tribunal sent the case back to the Employment Tribunal for them to apply the rest of the constructive dismissal test to the facts.
This case shows that a breach of contract can form the basis for a constructive dismissal claim even where the employer has every intention of the employment relationship continuing. We don’t know what the facts were that gave rise to Mr Singh being invited to a disciplinary hearing, and neither will we ever know if indeed Mr Singh was faking his illness. There may have been no substance to either allegation of course, however it would certainly be a real shame if Metroline finds that it has to pay out compensation to Mr Singh (and not to mention its own legal costs) in circumstances where it may have had a fair reason to dismiss, simply because it decided to take matters into its own hands!
How can our team of Employment Lawyers help you?
If you would like more information about managing sickness absence in the workplace, please contact Marie Allen, Head of Employment, at [email protected] or by phone on 01473 298133.
