REWARD
Failure to return to work, whistleblowing events, age discrimination
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Chemcare Scotland Ltd v Ure The Employment Appeal Tribunal (EAT) has held that an employee refusing to return to work following the end of her maternity leave amounted to her acceptance of a repudiatory breach, meaning that her claim for constructive dismissal could succeed. This case concerned an employee who had gone on maternity leave and was due to return to her role but did not. This was because, during her leave period, her employer had varied her pay without informing and consulting with her, switched her to a different payroll, and failed to provide her with statutory maternity pay on time, due to a personal issue between her and a shareholder (who was also her father). The employee not only refused to return to work but, crucially, did not communicate her intention to resign from her position to her employer. She instead went to the Employment Tribunal (ET), citing constructive dismissal. The ET upheld her claim, finding that the acts committed by her employer had served to breach the mutual term of trust and confidence between both parties. They also held that her failure to return to work amounted, for the purposes of the law, to
a communication that she had decided not to return due to these breaches. This meant that she had accepted the breach and had therefore been free to pursue the claim of constructive dismissal. Her employer appealed against this decision arguing that because she had failed to communicate her acceptance of the changes to her contract, by failing to communicate with them at all, her claim should have been struck out. The EAT dismissed the appeal, finding that the ET had reached their conclusions correctly. In forming their decision, the EAT accepted that her failure to communicate with her employer may, under normal circumstances, have meant that her claim could not succeed. However, they also addressed the circumstances surrounding her claim. It was clear that the employee had chosen not to return to work because of the way her employer, and in particular her father, had treated her. The EAT went further to say that the ET had correctly determined that this was the reason for her actions. The ET had therefore gone on to correctly conclude that, as a result of this, her non-appearance had amounted to her acceptance of the breach.
This meant her constructive dismissal claim could succeed.
Ikejiaju v British Institute of Technology Ltd
The EAT has ruled that the imposition of a new contract was a one-off event, not a continuing act, for the purposes of whistleblowing detriment. This case concerned a senior lecturer who made a protected disclosure, accusing the organisation he worked for of tax evasion. Following this disclosure, the organisation had introduced a new contract, something that ultimately broke down the relationship between the two parties. Nearly two years later, the claimant made a second protected disclosure, and this time was dismissed from his role the following day. He later brought numerous claims to the ET, including automatic unfair dismissal on the grounds of making a protected disclosure. He also claimed that he had been subjected to a detriment due to his previous protected disclosure that had continued from the imposition of the new contract to his eventual dismissal. The ET agreed that his dismissal had been automatically unfair on the grounds of the second protected disclosure made a day before his dismissal. They also agreed that he had been subjected to a detriment following the first disclosure due to the imposition of a new contract.
...chosen not to return to work because of the way her employer, and in particular her father, had treated her.
| Professional in Payroll, Pensions and Reward | February 2021 | Issue 67 30
Made with FlippingBook - Online magazine maker