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Bus driver reaches limit over sick pay

A failure to keep an accurate record of an employee’s working arrangements, alongside confusion around the Company’s sickness absence policy, which did not take into account part-time working arrangements, led to an employee receiving a series of incorrect sickness payments and ultimately, his resignation.

Craig v Abellio Limited

Mr Craig worked for Abellio Limited as a full-time bus driver from July 2014. In November 2014, he made a flexible working request to reduce his hours so that he could work part-time to assist with childcare. Mr Craig worked for 3 days per week for a brief period of time; however, it wasn’t long until he was working full-time again, albeit over 4 days per week.

Mr Craig’s working hours had therefore varied over the years whilst working for Abellio, which subsequently caused confusion around his official working pattern. This became apparent when Mr Craig was offered a role in March 2018, with significantly reduced hours and also his pay which was made on the assumption that he only worked 3 days per week.  This caused Mr Craig significant distress and subsequently, he went off on sick leave and was absent from work due to stress related illness for 10 weeks.

This brought into question what the appropriate rate of pay was for Mr Craig’s absence.This was also confused further as Abellio had two different policies on sickness absence during Mr Craig’s employment.

Mr Craig had two further periods of absence, which were in June 2018 for 13 weeks and February 2019. Mr Craig did not return after the latest absence and resigned on 20 July 2019 following the handling of a grievance he had raised regarding his entitlement to sick pay.

Mr Craig’s grievance was initially unsuccessful; however, upon appeal findings were made in his favour and it was concluded that he was owed £6,144.04 in arrears of sick pay.

Mr Craig was due to receive this payment on 19 July 2019; however, the money did not arrive and as a result, Mr Craig resigned the following day. He took this decision following the handling of his grievance and the series of events regarding his sick pay, in addition to Abellio failing to deal with other work-related issues which he had raised, which went back over a year. Mr Craig labelled the failure to make payment on the agreed date as the “last straw” he also stated that he was “no longer willing or able to endure this consistent pattern of emotional abuse and calculated deceit” within his resignation letter.

Mr Craig went on to issue claims in the Employment Tribunal for constructive dismissal, unlawful deduction of wages, holiday pay, bonus payment and failure to provide itemised payslips.

Decision

Mr Craig was originally unsuccessful in his claim for constructive dismissal. The Employment Tribunal London South held that the issue regarding sick pay owed to Mr Craig had been dealt with and that the fact the agreed payment date had been missed, was simply a mistake on the Respondent’s part. The Employment Tribunal held that neither of these events amounted to a repudiatory breach of contract or “last straw” event entitling Mr Craig to resign.

The case was then heard by the Employment Appeal Tribunal (‘EAT’), which held that the Employment Tribunal had failed to apply the last straw doctrine, in that, it had failed to make appropriate factual findings and apply the principles of the last straw doctrine to the facts and therefore the case was ordered to be remitted to a newly constituted tribunal.

Comment

The last straw doctrine is often seen in constructive unfair dismissal claims, where an employee may resign in response to a relatively minor act, claiming it is the straw that broke the camel’s back following a series of incidents.  The individual incidents themselves do not have to amount to a fundamental breach of contract, however when viewed together and cumulatively, there may be a “last straw” which causes the employee to resign.  The test is an objective one, and the EAT found in the above case that the Employment Judge had looked at Mr Craig’s position subjectively.

The case highlights the importance of dealing with any issues in relation to pay appropriately as they arise and likewise any grievances raised by an employee. We await a final decision as to whether Mr Craig was actually unfairly dismissed.

If you have any queries in relation to grievances, sickness absence, staff training, policies and procedures or any other queries, please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

 

 

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