October 2023 – Guernsey
The case
The Applicant was Head Chef at Bao Asian Café from August 2019 until May 2022. In early 2022, she had to attend a ceremony in Thailand following the death of her mother. The Café and Ms Timtheeranpong agreed that she would be absent from the end of March until the middle of May. Whilst the Café proprietor was a little unhappy, it was nonetheless approved. Soon after Ms Timtheerapong’s absence commenced, a medical certificate was given to the Café stating that she could not work for two months. The appearance of this certificate caused the proprietor some concern.
Following this, there was disagreement as to whether Ms Timtheerapong had confirmed a return date with the Café – she stated that she had, the proprietor had stated not. Upon her return, a meeting ensued, where the proprietor said he didn’t have work for her immediately as he had someone else covering her work. But, he would have work once another establishment opened. The Café proprietor explained that they needed further time (having, according to them, been caught off-guard by Ms Timtheerapong’s return) to make arrangements. In the event, Ms Timtheerapong provided further medical certificates stating that she remained unfit for work.
A series of email exchanges ensued, culminating in Ms Timtheerapong alleging a breach of contract for not allowing her back to work and stating that the contract had been terminated by that breach. The Café proprietor, on the other hand, stated that Ms Timtheerapong had resigned.
Upon review, the Tribunal preferred the evidence of Ms Timtheerapong as to whether the Café had received notification of her return date beforehand (although it should be noted that no documentary evidence could be identified to confirm this as the case). Additionally, the Café had not denied telling Ms Timtheerapong that there would be no work for her for two to three months and that she would not be paid during that time. At this point, the Tribunal ultimately determined there was a breach of contract on the part of the Café.
The Tribunal stated that even if a language barrier had potentially caused the misunderstanding over the return dates, the Tribunal determined that the Café’s failure to take reasonable steps to clarify and explain to Ms Timtheerapong what the understood position was (and allow Ms Timtheerapong the opportunity to correct any misapprehension) resulted in the Café conducting itself “in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.
Whilst the Tribunal applied a 25% award reduction to account for the fact that the Café proprietor was trying to deal with an inconvenient absence and the opening of a second establishment, the Tribunal upheld the constructive unfair dismissal claim and awarded £9,544.42.
LAW analysis
This case underlines the importance of dealing with any absence carefully as an employer, whether medical-related or any other absence—holidays, parental leave, unpaid leave, etc. Keeping good records so that an audit trail is available and confirming periods of absence with written communication is vital.
Even when dealing with periods of regular annual leave, employers should keep detailed records of when holidays are requested, approved and taken. Should there be any subsequent disagreement about whether an employee has taken a holiday, you can resolve this much quicker if a good audit trail demonstrates what happened and when.
Similarly, good communication and record-keeping are essential for leave requests, such as parental leave. Both the employee and employer should be absolutely clear when leave is commencing, when it is due to end, what pay the employee will receive during that period, what steps either party should take if a change to the period of leave is proposed, and what each party should expect of the other.
If you, as an employer, keep good absence records, then life can be significantly easier at any subsequent Tribunal hearing. You will be able to demonstrate what absence has occurred, what the employee has been paid concerning that absence, and that both parties were clear regarding their expectations and obligations.
