This week’s case roundup
What constitutes constructive dismissal?
Hilton v Shiner, IDSbrief 696, EAT
Hilton had worked for 20 years as a yard operative but occasionally, in
breach of normal procedures, he allowed customers to leave with goods without
issuing an invoice. Hilton admitted what he had done and offered an explanation
but Shiner felt he had been dishonest.
Instead of dismissing Hilton, he was given a final written warning and was
offered an alternative role on equivalent pay but not allowed to deal with
Hilton rejected the offer and resigned but his subsequent constructive
dismissal claim was unsuccessful. The tribunal found Shiner’s suspicions
justified and its conduct had not destroyed the relationship of trust and
confidence because it had proper and reasonable cause for their actions.
Further, the new role was not fundamentally different from the old one. On
appeal, the EAT held the tribunal was wrong to conclude there was no
fundamental change of duties as the new role was clearly a demotion. As a
potential variation of the contract it could not be imposed without Hilton’s
consent and to do so could amount to a repudiatory breach which had to be
judged objectively by reference to the impact on Hilton rather than Shiner’s
motive. The case was remitted for rehearing.
Sick pay could be reasonable adjustment
London Clubs Management v Hood, IRLR719 2001, EAT
Hood suffered regularly from "cluster headaches" and was paid
discretionary sick pay for sickness absence during 1998. In 1999, however,
Hood’s absences were unpaid, because due to high sickness levels among all employees
LCM had changed its policy and stopped paying sick pay. Hood argued this
constituted disability discrimination because his sickness absences were not
significantly higher than non-disabled colleagues. The tribunal concluded LCM’s
failure to pay the wages ordinarily due to Hood was discriminatory because the
reason for non-payment was Hood’s absences from work which related to his
disability. LCM’s change of policy had put Hood at a substantial disadvantage
and LCM had failed to comply with its statutory duty to make a reasonable
adjustment which could include the payment of sick pay.
The EAT held the issue in question was the non-payment of sick pay rather
than ordinary wages; the reason that Hood was not paid sick pay was LCM’s new
policy not Hood’s disability. However, the tribunal had not properly considered
whether Hood was put at a substantial disadvantage and the case was remitted
for rehearing. Interestingly, the EAT commented that the continued payment of
sick pay could constitute a reasonable adjustment.