DR KATE BARRY v Upper Thames Medical Group and 5 others — 2022

Dr Kate Barry was a GP employed by the Upper Thames Medical Group and partners. She had Myasthenia Gravis and, after a phased return to work in 2019, the dispute centred on the correct construction of the contractual sick-pay provisions, including paragraph 227 of the Hospital Conditions of Service. The tribunal held that the clause created a rolling entitlement rather than a one-off cap, so the claimant remained entitled to full sick pay when she relapsed in August 2020.

On that basis, the respondents were found to be in breach of contract for not paying full sick pay between 29 August 2020 and 26 December 2020. The judgment did not fix a final damages figure; it ordered that damages were to be agreed by the parties or, failing agreement, determined at a later remedy hearing. The written reasons note that the respondents' payroll advisers had calculated entitlement at £9,136.03 during the dispute, but that figure was not adopted as an award in this judgment.

The separate claim for non-payment between 15 February 2021 and 6 April 2021 failed. Although the tribunal accepted that the claimant was fit to work by then, it found she was not ready and willing to work because she was holding out for resolution of the sick-pay dispute, and that the respondents had made reasonable offers for her return.

The constructive unfair dismissal claim was dismissed. The tribunal found that the sick-pay non-payment was a fundamental breach and was causative of the resignation, but the claimant affirmed the contract by delaying resignation after learning sick pay was being withheld. The wider trust and confidence case failed because the earlier welfare meetings, capability meetings, and return-to-work discussions were found to be reasonable responses to her long absences and uncertain prognosis, and the final refusal letter only confirmed a position she already knew.