![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201506.jpg)
Health and constructive dismissal
[ch 5: pages 68-69]Overwork, bullying and sickness absence can combine to result in an employee deciding to resign and claim constructive dismissal. However, this is always an unwelcome last resort and an extremely high-risk strategy, as the risks seldom justify the reward. For a constructive dismissal claim to succeed, the breach of contract must be fundamental (i.e. very serious), showing that the employer “altogether abandons and refuses to perform” its side of the contract (Wright v North Ayrshire Council [2013] UKEAT 0017/13/2706).
Ms Logan resigned from her job as a veterinary nurse in response to a grievance decision which she found unsatisfactory. The grievance had involved a number of matters, including alleged bullying (which the employment tribunal found was a figment of her imagination) but also a failure to pay contractual sick pay (judged to be a repudiatory breach of contract).
The employment tribunal found that the principal reason for the resignation was the alleged bullying and not the sick pay, and rejected her claim of constructive dismissal. However the EAT ruled that the employment tribunal had been wrong to look for the “principal reason” in this case, and that sick pay was one of the reasons for the resignation.
Logan v Celyn House Limited UKEAT/0069/12/JOJ
In another case where stress led to sickness absence, failure to pay the sick pay due in the case of a condition arising out of the employee’s work led to a legal challenge:
Mr Roberts was employed as a teacher from 1 September 1997 until his resignation on 26 May 2010. Following allegations against him, he went on sick leave in November 2009. On 29 March 2010 he was notified that he would be placed on half pay from 28 May 2010, but on the same day he wrote to the school asking for confirmation that he would be paid in accordance with section 4, paragraph 9.1 of the “Burgundy Book”, the collective agreement which was incorporated into his contract of employment.
The agreement said that in the case of absence due to accident, injury or assault attested by an approved medical practitioner to have arisen out of and in the course of the teacher’s employment, full pay shall in all cases be allowed, subject to the production of self‑certificates and/or doctor’s statements “from the day of the accident, injury or assault up to the day of recovery but not exceeding six calendar months.”. Mr Roberts’ representative argued that his stress and depression were the result of an injury at work.
The EAT found that the employer (in this case the school governing body) had committed a fundamental breach of contract by withholding sick pay. It made no difference that the school made an honest mistake by misinterpreting the collective agreement containing the contract term. It mistakenly believed that mental illness suffered in the course of employment triggered an entitlement to half pay rather than (the correct) full pay sick pay. Roberts was entitled to resign and claim constructive dismissal.
Roberts v the Governing Body of Whitecross School [2012] UKEAT/0070/12/ZT