Contract terms for sickness absence
Secession Limited t/a Freud v Bellingham, 25 October 2005
Background Mrs Bellingham was employed by Secession for almost 15 years. Following the Christmas break, Bellingham submitted a doctor’s certificate for one month’s absence from work.
Bellingham was paid monthly and expected to receive her usual salary, but instead received a cheque calculated on the basis of statutory sick pay (SSP). She resigned and brought a tribunal complaint of constructive dismissal.
She did not have a contract in writing nor any documentation regarding her employment terms, but she claimed she was entitled to receive full pay when she was sick as had been the company’s practice during her earlier periods of absence. Secession argued that contracts of employment offered to other employees provided that SSP would be paid at the company’s discretion. However, the tribunal rejected this and upheld Bellingham’s claim.
Appeal The company’s appeal was dismissed. Applying Lord Hoffmann’s approach in Carmichael v National Power [1999], the EAT held that the tribunal had been entitled to derive a term of a contract from the way in which the employer and this employee had, in the past, behaved towards one another. As Bellingham had been paid in full for previous periods of absence and based on her understanding that she would be paid in that way for all periods of sickness absence, the tribunal was entitled to find in her favour.
Comment This case highlights the risks to employers of failing to provide an employee with written particulars of the main terms and conditions of their employment. In such circumstances the tribunal will look to imply certain terms by examining the parties’ presumed intention at the time the contract was entered into, or the custom and practice of the employer. Every employee is entitled to receive a written statement of particulars of employment from their employer within two months of starting work.
Part-time working requests
Mitchell v David Evans Agricultural Limited, EAT, 15 March 2006
Background Ms Mitchell was dismissed from her part-time position after her employer decided it required a full-time employee. Mitchell’s request to work as part of a job-share to accommodate her childcare responsibilities was rejected.
She had insufficient continuity of employment to claim unfair dismissal. However, she brought proceedings against the company alleging indirect sex discrimination.
The tribunal held that the requirement to work full-time was a “provision, criterion or practice” which was to the detriment of a considerably larger proportion of women than men, but that the company was justified in dismissing Mitchell. A computer system had been introduced, which the employer expected would take it to another level of business operations and efficiency. It had a justifiable requirement for greater administrative efficiency and required one individual who could assist with the bespoke service offered to clients. Mitchell appealed on the finding of justification.
Appeal The Employment Appeal Tribunal (EAT) said the original decision was inadequate. The tribunal had to assess the reasonable needs of the business, to consider whether the proposal to work full-time was reasonably necessary and to consider whether the proposal could be justified despite its discriminatory effect against Mitchell. The case was sent back to the same tribunal to consider the issue of justification.
Comment Employers must critically and objectively evaluate any request to work on a part-time basis. While an employer may be able to point to what may appear to be sound business reasons to justify its decision, it must also consider whether the reasons are strong enough to overcome the discriminatory impact. In particular, employers should consider whether there are any alternatives that would achieve the same aim without being disadvantageous to an individual.
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