Roberts v The Governing Body of Whitecross School [2012] UKEAT/0070/12/ZT
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Published on: 04/11/2015
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Background
The appellant employee appealed against an employment tribunal's decision that his resignation did not amount to constructive dismissal and so the respondent employer had not unfairly dismissed him. The appellant was a teacher who went on sick leave with stress and depression after allegations were made against him at work. The respondent decided to pay the appellant half pay rather than the full contractual sick pay for his absence because it mistakenlyinterpreted the Collective Agreement covering sick pay which was incorporated into the appellant‟s contract of employment. The respondent wrongly thought that the Collective Agreement covered only physical injuries and not mental injuries.The appellant resigned and claimed unfair constructive dismissal. The tribunal found that whilst the respondent had been wrong about its employee's entitlement, that had been because of an honest view of what was meant by the relevant clause and not because it did not intend to be bound by the contract. Accordingly, although the failure to pay was a breach of contract, it did not amount to a breach going to the root of the contract that would enable the appellant to resign and claim constructive dismissal.On appeal it was held that there was a fundamental breach of contract when the respondent intentionally failed to pay the appellant the full amount of pay which was due, even though the respondent made an honest mistake as to how much pay was due.Although the respondent's decision to reduce pay was based on a mistaken belief as to the terms of the Collective Agreement, the EAT held that there is a difference between merely adopting a view of a contractual obligation and acting on that view. In this case, the respondent did more than insist that it's view of it's contractual obligation was a correct one. By acting on that view, it committed a fundamental breach of contract.http://bit.ly/UekZZg
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This article is correct at 04/11/2015
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