BREACH OF CONTRACT FOR UNDERPAYING CONTRACTUAL SICK PAY
15 August 2012
Can an employer commit a fundamental breach of contract by intentionally failing to pay an employee the full amount of pay properly due, even if making an honest mistake as to how much pay is due?
Yes, says the Employment Appeal Tribunal (Mrs Justice Slade DBE presiding) in Roberts v The Governing Body of Whitecross School .
Daniel Barnett’s Employment Law Bulletin reports:
The employee was off sick with stress and depression. The School decided to pay only half pay, rather than full contractual sick pay, on the basis of a mistaken interpretation of the Collective Agreement covering sick pay, thinking that it covered physical but not mental injuries. The employee won a wages claim for sick pay, but lost a constructive dismissal claim, as the tribunal found that whilst the School was in breach of contract by not paying full sick pay, it was not in fundamental breach of contract. The EAT overturned the employment tribunal's judgment, as a finding of a fundamental breach was inevitable on the facts; the School had a 'settled intention' not to pay the full contractual sick pay due. The School had acted on its view of the contract, rather than simply asserting it. The EAT doubted previous case law that repudiation might not occur when a party is acting under a genuine but mistaken belief as to the terms of a contract, but noted that it may not be a fundamental breach of contract for an employer to reduce pay by a material extent if its approach arose from an error or simple mistake.
The EAT remitted the case to a new tribunal to determine if the Claimant was constructively dismissed in response to the breach.
COMPENSATORY AWARD AND ENTITLEMENT TO WORK
20 August 2012
Was an employment tribunal correct to award unfair dismissal compensation beyond the period an employee was entitled to work in the UK?
No, says the Employment Appeal Tribunal in Kings Castle Church v Okukusie .
Daniel Barnett’s Employment Law Bulletin reports:
The claimant was employed as a pastor. When he began work he applied for permission from the UK Border Agency (UKBA) to live and work in the UK. This was granted until 11 October 2009. On 19 January 2010 he received a letter from UKBA refusing his application to remain in the UK indefinitely. On 10 February 2010 he was dismissed. The employment tribunal found that this was unfair on the basis that the church had acted automatically on the information it had, without investigating further. The tribunal awarded compensation to the date of dismissal and future loss for a further six months.
But a material letter dated 18 May 2010, from UKBA, had not been included in the bundle before the tribunal. It said that the claimant's appeal against the original UKBA decision was
CIPP Policy News Journal
12/04/2013, Page 57 of 362
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