Employment Tribunal: Affirmation and sickness
5 February 2015
Does an employee who might claim constructive dismissal affirm the contract by claiming sick pay whilst off sick?
Not necessarily, held the EAT in Colomar Mari v Reuters .
With thanks to Daniel Barnett’s employment law bulletin, here is a summary of the case.
The Claimant was a systems support analyst. She resigned after 19 months after going off sick with stress, anxiety and depression. An employment tribunal had rejected the Claimant's assertion that she had been too ill to resign sooner and dismissed the complaint on the basis of affirmation.
The EAT dismissed the appeal, the employment tribunal had correctly applied the law to the facts, with affirmation being a mixed question of law and fact, the decision was not perverse.
Whilst the EAT noted 'What can be safely said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period whilst protesting about the position' the judgment stood on the facts found by the employment tribunal. The EAT noted a previous authority, Hadji v St Luke's Plymouth, including the principle that an employment tribunal may find affirmation if an employee calls on the employer to perform its obligations under the contract. The employment tribunal found that the Claimant had done so, by accepting contractual sick pay, and requesting PHI amongst other factors. The employment tribunal dealt with affirmation as a preliminary issue, without making findings of fact, but assuming that the Claimant had shown a fundamental breach of contract. The EAT indicated that this should be regarded as an exceptional course, in nearly all cases which go to a full hearing, it is better to determine the issues.
EAT’s decision on Collective Redundancies in Woolworths was wrong
6 February 2015
In the Woolworths case on collective redundancy consultation, the Advocate General has released an Opinion saying that the EAT’s decision in Woolworths was wrong.
In an interesting and perhaps surprising development in the Woolworths case on collective redundancy consultation, the Advocate General has today released an Opinion saying that the EAT’s decision in Woolworths was wrong.
Pinsent Masons provides a useful summary of the facts and implications:
The Employment Appeal Tribunal (EAT) ruled last year that the UK legislation on collective redundancy consultation was not compatible with EU law. The EAT decided that the UK rules had to be read as requiring employers to collectively consult whenever an employer proposes 20 or more redundancy dismissals in 90 days or less across its business, regardless of how many redundancies are proposed at any single establishment.
The case is now before the Court of Appeal who referred the issue of compatibility between UK legislation and the EU Directive to the CJEU. In a parallel development, an Employment
CIPP Policy News Journal
08/04/2015, Page 134 of 521
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