Claimant not constructively dismissed when arguing that there should be full pay during sickness absence following a TUPE transfer. There was no custom and practice that had developed during her employment to allow for such payments as a contractual entitlement.

The claimant was employed by OMT Solicitors from October 1998 as a legal bookkeeper.  On the retirement of a partner in the practice, the Antrim branch (where the claimant worked) was acquired by the respondent. This led to the claimant’s employment being transferred to the respondent via TUPE in January 2023. As a result of the change, there was a different accounting and case management software used. The claimant contended that she was not given adequate training in relation to the new software.

The claimant commenced sickness absence in August 2023 due to stress and was paid statutory sick pay. The claimant then brought a grievance in September 2023 relating to the alleged lack of training and the failure to pay full pay during the sickness absence. A further grievance was raised in October 2023 relating to similar issues.

The claimant issued a claim in November 2023 (when she was still working for the respondent) relating to the sick pay issue. On 8th November 2023 the grievance was not upheld but as a matter of goodwill the respondent offered and paid six weeks’ full pay relating to the sickness absence. 2 days later the claimant resigned. The claimant claimed for constructive dismissal and stated that she was not given the correct entitlement to sick pay as it was ‘custom and practice’ with her former employers that full pay would be given. It should be noted that there were no particulars of employment, written contract of employment or written sick pay policy with the former employer.

The Tribunal had to examine the extent to which there was a contractual term relating to the sickness absence considering that it went to the unlawful deduction from wages claim as well as the constructive dismissal claim. In terms of the claimant’s employment with OMT, it was found that the claimant had been off once following a surgical procedure and that is when she received her full pay. The Tribunal found that it was relevant but in isolation it did not establish a contractual entitlement arising through custom and practice. There was some evidence relating to others who had worked with OMT but it was found that the evidence did not demonstrate a sufficiently certain and established practice operating over a prolonged period (the evidence was largely from 2022) such as to convey full payment as of right. As a result, it was found that there was no contractual entitlement to full sick pay, it did not amount to an unlawful deduction from wages to pay SSP, there was no repudiatory breach of contract by paying SSP and there was no detrimental change within the TUPE regulations.

The claimant had also argued that there was a breach of implied term of a relationship of trust and confidence as a result of the alleged lack of training. The Tribunal did accept that the claimant felt she required more structured communication and written guidance in relation to the new systems and procedures. That being said, when viewed objectively it was found that the systems and the training in place did not amount to conduct that would destroy or seriously damage that relationship of trust and confidence.  As a result, all of the claims were dismissed.

This case stems from a lack of written policy or contractual entitlement to sick pay with the original employer and that arising as an issue following a TUPE transfer. Whilst it would be open to an employee to show that there was an implied term through custom and practice it would have to be evidenced that this was recognised over a prolonged period of time. This could not be evidenced and led to the case unravelling. The key point is that, notwithstanding the TUPE point, that there should be clear contractual terms in relation to sickness absence policies and pay following. From a TUPE perspective, it would be important to have this dealt with some certainty; it was raised in earlier correspondence leading to the transfer but was not actually fully answered in the replies.

NI Tribunal decisions are available on the OITFET website.