In order to decide whether the imposition of a unilateral variation of an employee’s contract constitutes a dismissal, the Employment Appeal Tribunal (EAT) held in Jackson v The University Hospitals of North Midlands NHS Trust that tribunals must find that the old contract had been brought to an end by carrying out “a proper before-and-after comparison” to consider whether the new role was radically different from the old one.
Basic facts
As part of a reorganisation, the trust reduced the number of Band 6 nurse posts which meant that those nurses had to reapply for their jobs. Ms Jackson was unsuccessful in her application and was informed by letter on 13 November 2018 that she would be slotted into a Band 5 post with effect from 3 December.
She refused to sign the new terms and conditions, arguing that her post was, in fact, redundant. This would have entitled her to enhanced redundancy pay under NHS terms and conditions known as Agenda for Change (AfC). She lodged a grievance arguing that the Band 5 role did not constitute suitable, alternative employment. When this was rejected, Ms Jackson resigned on 28 December 2018.
However, after successfully appealing the rejection of her grievance, she withdrew her resignation. The trust accepted her withdrawal on 25 January and gave her eight weeks’ notice of dismissal by reason of redundancy. She argued that her redundancy had started with effect from 3 December 2018 (the date she was due to be slotted into a Band 5 post) and that notice was retrospective so that it expired on 28 January 2019.
The trust did not agree that a new contract had been imposed on 3 December and confirmed that the eight weeks’ notice would expire on 22 March 2019. Ms Jackson did not accept that and resigned claiming she had been constructively dismissed on 28 January. At that point, the trust informed her that because she had left before the expiry of her notice period, she had forfeited her entitlement to redundancy pay under AfC.
Ms Jackson lodged a tribunal claim for unfair dismissal and redundancy pay (both contractual and statutory), arguing that by virtue of the decision in Hogg v Dover College the trust had dismissed her on 3 December when it unilaterally imposed the band 5 contract, thereby terminating her original contract and replacing it with another one.
Tribunal decision
The tribunal concluded that Ms Jackson had been expressly and unfairly dismissed by the trust by reason of redundancy and awarded her a statutory redundancy payment. However, it did not agree that there had been a Hogg dismissal because:
the new contract did not involve a “radical change” entitling her to claim constructive dismissal. Further, she did not regard herself as having been dismissed and had lodged a grievance which was inconsistent with her employment ending. Finally, it held that she was not entitled to a contractual redundancy payment as she had left before her notice expired, contrary to the terms of AfC.
Ms Jackson appealed, arguing that she had been subject to a Hogg dismissal on 3 December 2018. This was important because if she was still an employee when her notice expired, the provision in the AfC terms by which she was said to have forfeited her entitlement to the payment would not apply.
EAT decision
Upholding her appeal, the EAT concluded that the tribunal was wrong to focus on whether Ms Jackson had been constructively dismissed. Instead, it should have focused on whether her old contract had been terminated and replaced by another one.
As it had not done that, it had failed to ask itself the correct question. That is, what was the effect of the variation of the contract unilaterally imposed by the employer. To answer that question, the tribunal should have carried out “a proper before-and-after comparison” of the Band 5 and Band 6 posts to decide whether the new terms were different enough to amount to “a withdrawal of one contract and its replacement by another”.
As that was a matter of fact and degree the EAT remitted this question back to a different tribunal to determine.
