PARBHJOT SINGH v METROLINE WEST LIMITED

A deliberate and substantial failure to pay wages or contractual sick pay to which an employee is entitled may amount to a fundamental breach of contract. The correct question is whether the employer has evinced an intention no longer to comply with a contractual term in a manner sufficiently serious to go to the root of the contract. It is not necessary that the employer intend to end the employment relationship.

An appellate tribunal may determine an issue itself only where there is one possible answer. A tribunal must determine an application to adduce evidence, but an error in failing to do so will not affect the result where the evidence could not reasonably assist the claim.

The claimant appealed against the Employment Tribunal’s dismissal of the relevant parts of his constructive unfair dismissal claim. He alleged that the respondent had acted aggressively when arranging a disciplinary hearing and had then withheld contractual sick pay during certificated sick leave.

The Tribunal found that withholding company sick pay for about seven weeks breached the contract, but was not a fundamental breach. It also made no determination of the claimant’s application to adduce video evidence of the alleged aggressive conduct.

The appeal concerned whether the sick-pay breach was repudiatory and whether the Tribunal’s failure to decide the evidential application was an error requiring further action.

1. Appeal allowed in part and remitted. The Employment Tribunal erred in holding that the deliberate withholding of contractual sick pay was not a fundamental breach. The EAT substituted a finding that it was a fundamental breach of contract and remitted the case for determination of whether the claimant resigned, at least in part, in response to that breach.
2. The Tribunal had wrongly treated the employer’s wish to continue the employment relationship and secure the claimant’s participation in disciplinary proceedings as decisive. The proper inquiry was whether the employer evinced an intention no longer to comply with the contractual term in a way sufficiently serious to go to the root of the contract. An employer may commit such a breach by unilaterally and substantially reducing pay even if it wishes the employee to remain employed.
3. The respondent deliberately paid statutory rather than contractual sick pay, despite the claimant’s contractual entitlement. Other contractual procedures addressed suspected non-genuine sickness, but were not used. The substantial reduction in weekly income meant that only one conclusion was open: the breach was fundamental.
4. The Tribunal also erred in failing to determine the application to adduce video evidence. Applying Jafri v Lincoln College [2014] IRLR 544, the EAT could decide the issue because there was only one possible answer. The footage could not reasonably support a finding that the manager’s conduct contributed to a breach of the implied term of trust and confidence. No remittal was required on that issue.

• Employment Appeal Tribunal: Allowed the appeal on the contractual sick-pay issue, substituted a finding of fundamental breach, and remitted the remaining constructive-dismissal issue.
• Employment Tribunal, Watford: Found that withholding company sick pay breached the contract but was not a fundamental breach; it did not determine the application to admit video evidence.