Good morning and welcome back to your weekly case law update. Last week we had our monthly update for November, it had features on the ECJ’s decision in the Sash Windows case and new statutory pay rates. Our previous case law update was the EAT decision in the Uber case.
Since we last covered the Uber case we can confirm that Uber has applied to appeal the decision. The appeal requested to bypass the Court of Appeal and be heard directly in the Supreme Court. The request to skip the CoA was rejected and the appeal will be heard in the Court of Appeal instead. Should Uber lose the CoA appeal they will almost certainly appeal to the Supreme Court and this will mean there is a longer wait for a definite decision on the issue.
This week, to the jubilation of readers, our case law update is not about the gig economy -honestly – and we move to the contentious topic of constructive dismissal.
Constructive dismissal is defined in Section 95(1) of the Employment Rights Act 1996 as the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. It usually occurs when the employee resigns due to a repudiatory breach of contract.
Chindove v Morrison Supermarkets Plc
The question in this case is:
Can a period of sickness and receipt of sick pay affirm any breach that gives rise to constructive dismissal claim?
Mr. Chindlove, the Claimant, worked as a Warehouse Operative for Morrison Supermarkets, the Respondent. The Claimant was black and alleged he was racially discriminated against and harassed because of this by a colleague.
After a period of six weeks sickness the Claimant resigned and initiated a tribunal claim. During the period of sick leave, the Claimant handed in sick notes and was in receipt of sick pay.
The ET held that despite the racial discrimination amounting to a breach of contract the Claimant had affirmed the breach by not resigning straight away and instead of handing in sick notes and receiving sick pay. The ET failed to fully explain how these acts amounted to a positive affirmation of the breach of contract.
The Claimant appealed and the EAT allowed the appeal. It held that the period of sickness and associated conduct could be a positive or neutral act but without reasoning, it was an error of law to find either way. It remitted the case back to a different ET to be reheard.
The takeaway point:
Maybe, going on sick leave and everything that comes with that could affirm a breach, it is dependent on the facts. Without context, it could go either way. This case shows that a resignation is not automatically affirmed if the resignation is not immediate.