Guernsey
The case
The Applicant was a head chef with the Respondent from August 2019 until May 2022. In early 2022, they had to attend a ceremony in Thailand following the death of their mother. The Respondent and the Applicant agreed that the Applicant would be absent from the end of March until the middle of May. Whilst the Respondent’s proprietor was a little unhappy, it was nonetheless approved. Soon after the Applicant’s absence commenced, a medical certificate was given to the Respondent stating that the Applicant could not work for two months. The appearance of this certificate caused the proprietor some concern.
Following this, there was disagreement as to whether the Applicant had confirmed a return date with the Respondent – the Applicant stated that they had, the Respondent had stated not. Upon the Applicant’s return, a meeting ensued, where the proprietor said they didn’t have work for the Applicant immediately as they had someone else covering their work. But, they would have work once another establishment opened. The Respondent’s proprietor explained that they needed further time (having, according to them, been caught off-guard by the Applicant’s return) to make arrangements. In the event, the Applicant provided further medical certificates stating that they remained unfit for work.
A series of email exchanges ensued, culminating in the Applicant alleging a breach of contract for not allowing them back to work and stating that the contract had been terminated by that breach. The Respondent’s proprietor, on the other hand, stated that the Applicant had resigned.
Upon review, the Tribunal preferred the evidence of the Applicant as to whether the Respondent had received notification of the return date beforehand (although it should be noted that no documentary evidence could be identified to confirm this as the case). Additionally, the Respondent had not denied telling the Applicant that there would be no work for them for two to three months and that they 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 Respondent.
The Tribunal stated that even if a language barrier had potentially caused the misunderstanding over the return dates, the Tribunal determined that the Respondent’s failure to take reasonable steps to clarify and explain to the Applicant what the understood position was (and allow the Applicant the opportunity to correct any misapprehension) resulted in the Respondent 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 Respondent’s 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.
