Case law updates

Changing terms and conditions: An employee was found to have been unfairly dismissed after she refused to agree to a variation of her terms and conditions of employment at the start of the pandemic when her employer was responding to the workforce challenges at the time. Interestingly, the tribunal was satisfied that the employer had a potentially fair for the dismissal (namely “some other substantial reason”); the finding of unfair dismissal arose from the employer’s failure to engage in any meaningful consultation or explore alternatives to dismissal, and the decision to terminate her employment (without notice) within 48 hours of first raising the variation. This acts as a useful reminder that a fair process is crucial to dismissal, including a dismissal and re-engagement exercise to facilitate a change to terms. This practice is, however, under the spotlight at the moment, with the unions calling for a ban on ‘fire and re-hire’ tactics. The issue has been discussed in parliament, but it remains to be seen if the government intends to reform the law in this area. [Khatun v. Winn Solicitors]

Constructive unfair dismissal: When identifying whether there has been a fundamental breach of contract, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal needs to examine whether the breach occurred in the period prior to resignation, and not simply to focus on the situation at the point of resignation. The EAT also reaffirmed that once a breach of contract becomes fundamental, it cannot be remedied by the employer. In the present case, the claimant worked with a disabled child who required daily lifting and she resigned on returning to work after a period of sick leave with back pain. Although at the time of her return she was promised manual handling training, and told she would not be required to lift, this was said against a background of her repeatedly requesting (but not being provided with) training over a period of months prior to her sickness absence. Although at the time of her resignation there was a genuine concern for her health and safety, her employer’s earlier failings meant it had already fundamentally breached its implied duty to provide a safe place of work. As the breach became fundamental at some point before the claimant was signed off sick, it could not then subsequently be cured so as to avoid the constructive unfair dismissal claim. [Flatman v. Essex County Council]