Background:

The claimant began work for the respondent in 2010 as an acute care research nurse.  In 2013 she moved to a specialist role as a senior haematology research nurse.  In 2018 there was a review of the research and development directorate for the purpose of cost savings.  This meant that the posts would become more generalised and those at Band 6 (the claimant’s band) would be ‘senior research practitioners’.  There would be fewer staff at Band 6 and as a result existing staff were invited to apply for those posts. If unsuccessful, they would be slotted into the Band 5 ‘research practitioners’ post.

The claimant was unsuccessful for one of the Band 6 posts.  The letter outlining the decision stated that the claimant would be slotted into one of the Band 5 roles in December 2018 (3 weeks later).   The claimant refused to sign the new terms and conditions and the Tribunal found that the new role was imposed upon the claimant.  There was no trial period given to the Band 5 role to allow the claimant to decide whether it was suitable alternative employment.   The claimant stated to the respondent that they should make her redundant and that if they refused she would consider herself unfairly and constructively dismissed.  The Agenda for Change policy within the NHS gave an enhanced redundancy allowing for one month’s pay for each completed year of service.  This came to £36,644 for the claimant.

The claimant brought a claim for unfair dismissal because she was not made redundant during this process.

Outcome:

At first instance, the Tribunal found that the letter outlining that she was unsuccessful for the Band 6 role was not a letter of dismissal.   The EAT added to this stating that it was not a letter of ‘express’ dismissal.  The issue was whether this was a repudiatory breach of the contract for the purposes of constructive dismissal which the employee has accepted.  The difficulty was that the claimant did not resign at that point but rather submitted three grievances – it was only on 28th December 2018 that the claimant had resigned.  However, during her notice period one of her grievances was accepted citing that she had, in fact, been made redundant from her Band 6 role and that the new role was not suitable employment.    This meant she would be served with 8 weeks’ notice.   The claimant withdrew her resignation.  There remained an issue about when the notice began from meaning that the claimant reinstated her resignation with her leaving on 28th January 2019.

The EAT held that there had been a dismissal in line with the Hogg case which stated the question is whether the particular contract under which the employee was employed by the employer at the relevant time was terminated by the employer.  If the old contract has been terminated a new one imposed then there is no mechanism by which the employee can affirm the old contract.  Accordingly, Hogg works where there is a contract being varied rather than a ‘fire and re-hire situation’.  This was the case here consideration that the move from Band 6 to Band 5 was being unilaterally imposed.  Accordingly, the appeal was successful citing that there had been a dismissal by the respondent in line with Hogg.  The case was remitted to a new Tribunal for decision.

Practical Guidance for Employers:

This case demonstrates some of the difficulties when it comes to restructuring and contracts for staff being varied.  Where it is varied to the extent that the original contract has been terminated and a new one imposed then that would constitute a dismissal for the purpose of an unfair dismissal action.  This will make it difficult for the respondent to argue that there is a fair reason for dismissal especially in light of the normal procedures that need to be adopted in disciplinary action.  It will be interesting to see what course of action the Tribunal takes should it be reheard following the remittal.

The full case can be viewed here: https://www.gov.uk/employment-appeal-tribunal-decisions/miss-clare-jackson-v-the-university-hospitals-of-north-midlands-nhs-trust-2023-eat-102