Case Law updates

Changing terms and conditions: There is a risk of an employee being deemed to have been unfairly dismissed where an employer unilaterally places the employee into a new role on different terms and conditions (even where the employee remains employed in that new role and does not resign). In determining if there has been a dismissal, the key question is whether the changes are such that, in effect, they amount to the initial contract being terminated by the employer and replaced by a new one. In this recent case, which had a complex factual background, the Employment Appeal Tribunal (EAT) overturned the decision of the employment tribunal (ET), which had found that there was no dismissal where an employee was unilaterally moved to a lower grade role. The EAT was critical of the ET’s rationale – the ET had failed to carry out a proper ‘before and after’ exercise to compare the terms and had wrongly given relevance to the employer having no intention to dismiss the claimant. The case has been remitted to the ET. (Jackson v. University Hospitals of North Midlands NHS Trust)

Constructive unfair dismissal: Constructive dismissal claims arise from an employee resigning in response to their employer’s fundamental breach of contract, although claims will fail where the employee has ‘affirmed’ or accepted the contract after the alleged breach. A recent case has explored whether invoking a grievance procedure or appeal process is sufficient to unequivocally affirm the contract. In this case the claimant raised a grievance about the alleged breach, reserving her rights, and resigned before the grievance process was complete. The ET dismissed her claim on the basis that her continued employment and delayed resignation meant she had affirmed the contract, but the EAT concluded the fact of her grievance was insufficient in itself, and more consideration to the overall circumstances was necessary to determine whether she had in fact affirmed the contract. (Brooks v. Leisure Employment Services)

Insolvency – redundancy: In a case which will be welcomed by administrators, the Supreme Court has determined that an administrator appointed under Part II of the Insolvency Act 1986 is not an “officer” of the company within the meaning of the phrase “director, manager, secretary or other similar officer of the body corporate” so as to fall within section 194(3) of the Trade Union and Labour Relations (Consolidation) Act 1992, meaning they are not liable to prosecution for failing to file an HR1 form. (R (on the application of Palmer) v. Northern Derbyshire Magistrates Court and another). Read more on our Employment Law Watch blog.

Redundancy: A recent EAT decision is a helpful reminder of the procedural requirements of a fair redundancy dismissal, reiterating that a reasonable employer should take steps to mitigate against the impact of redundancies by limiting the number of people affected, the impact on individuals or avoiding dismissals, via meaningful consultation. In this case, there was no opportunity for the claimant to discuss the redundancy proposals or try to affect the decision, and he was not provided with his scores from the selection matrix, failures which could not be rectified on appeal. As such his dismissal was unfair. (De Bank Haycocks v. ADP RPO Ltd)

Resignation: Although employers can usually rely on words of resignation in line with their ordinary meaning, a recent EAT decision is a useful reminder that this is less straightforward when resignations are given ‘in the heat of the moment’. In this case the claimant tendered his verbal resignation during an argument with his line manager, but a couple of days later (and without having put his resignation in writing) sought to retract it. Although the ET found the resignation to stand on the basis of words used, the EAT decision reiterates that in these types of cases, the words used are not sufficient alone – it is also relevant to consider whether, objectively, the employee ‘really’ intended to resign. (Omar v. Epping Forest District Citizens Advice)

Trade unions: The Supreme Court has concluded that Deliveroo drivers do not have rights under article 11 of the European Convention on Human Rights to form and join a trade union because they do not have an employment relationship with the company. This does not affect Deliveroo’s ability to voluntarily agree to recognise a trade union. (Independent Workers Union of Great Britain v. Central Arbitration Committee)

Whistleblowing: The EAT has prohibited a claimant from bringing fresh proceedings relying on the same set of protected disclosures used as part of a previously settled claim, but from which she alleged subsequent new (post-settlement) detriments. The COT3 agreement used to settle her original claim contained sufficient wording to prevent future claims associated with the disclosures, highlighting the importance of clear wording in settlement agreements. (Ajaz v. Homerton University Hospitals NHS Foundation Trust)

Woman – definition: The Scottish Court of Session (Inner House) has held that a ‘woman’ for the purposes of the Equality Act 2010 includes trans-women with a gender recognition certificate. While not binding in England and Wales, this decision may be referred to if the definition of ‘woman’ is in dispute. (For Women Scotland Ltd v. The Scottish Ministers)

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