- within Employment and HR topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- in United Kingdom
- with readers working within the Automotive, Business & Consumer Services and Retail & Leisure industries
When you are alleging that your employer has committed a fundamental breach of contract which goes to the very root of the contract and relationship, you must be extremely careful not to affirm the contract during any subsequent communications with them.
The case of Barry v Upper Thames Medical Group & Ors is a case in point.
Dr Kate Barry worked at Upper Thames Medical Group as a GP.
She developed laryngitis during her employment and was later diagnosed with an autoimmune disorder. She underwent several periods of sickness absence. A capability meeting was held to discuss her absence, following which, in September 2020, the Group told her they would not be paying any further sick pay. She alleged this was a fundamental breach of contract and a breach of the implied duty of trust and confidence.
Dr Barry was assisted in her dispute by her union rep, who led negotiations, some of which were conducted on a without prejudice basis. On 26 March 2021, the senior partner confirmed she would not receive any sick pay. She resigned on 6 April 2021.
A first instance tribunal held that she had affirmed her contract and could not therefore claim constructive unfair dismissal. This was due to –
- The long delay between September 2020, when she learned that she would not receive any further sick pay, and her resignation in April 2021;
and;
- A statement made by her on 26 December 2020 that she was ready and wanted to return to work as soon as the sick pay issue could be resolved.
The EAT on appeal found that the tribunal had not adequately considered negotiations and the fact that the practice manager had told the union rep in February 2021 that Dr Barry was owed over £9,000 (thereby giving the claimant the impression the dispute could be resolved). This was highly relevant evidence of the fact that Dr Barry was seeking to resolve the breach, not that she was affirming the contract.
We have seen a softening or widening of the doctrine of constructive unfair dismissal in recent judicial hearings. Tribunals appear to be more supportive of claimants. Constructive unfair dismissal is however, still a difficult claim and one that should not be embarked on without first taking legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
