Sick pay

Case 10: The facts

Mrs Benjamin brought a constructive dismissal claim, arguing that her employer had breached her contract by refusing to pay her sick pay, failing to deal with a grievance and, through a telephone conversation with her husband, inviting her to resign. A tribunal dismissed her claim.

The ruling

The Employment Appeal Tribunal (EAT) agreed that it is reasonable for an employer to wait to resolve a grievance until the employee has returned from sick leave, so Benjamin’s employer had not been in breach of contract on this issue. It also upheld the finding that she had already indicated her intention to resign and her husband had been trying to negotiate a settlement.

However, the tribunal had not established whether or not Benjamin was entitled to sick pay; if she was, a failure to pay it would amount to a breach of contract.

If there is no express provision for sick pay, the EAT said, a tribunal must look at all the facts and circumstances – including custom and practice – to see whether there is an implication that wages will be paid. It was not enough for the tribunal to say there was insufficient proof that sick pay was payable, especially as the employer had acted contrary to law by not providing a statement of employment conditions.

Benjamin v Interlacing Ribbon Ltd UKEAT/0363/05 & 0420/05