El-Hoshi v Pizza Express Restaurants Ltd, EAT, 23 March 2004

Delay does not affirm breach of contract following whistleblowing: El-Hoshi found out his manager had employed an illegal immigrant. He raised his concerns, and was punished by being rostered to work four nights in the kitchen. He walked off site and never returned to work.

For three months he submitted sicknotes for depression and was in receipt of sick pay until 13 March 2002 when his solicitor wrote to his employer stating that “the relationship of trust and confidence… has been totally destroyed” and “[the employer has] committed a repudiatory breach of… contract”. No response was received, so on 5 April El-Hoshi filed a tribunal claim.

The tribunal upheld that he had been subjected to a detriment, but dismissed his constructive dismissal claim. He appealed successfully.

The EAT said that El-Hoshi, via his solicitor’s letter of 13 March, had noted his employer’s breach of contract, therefore his employment terminated on that date. El-Hoshi had not waived his right to claim unfair constructive dismissal by his delay in bringing a claim while submitting sicknotes and claiming sick pay.

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