The claimant was a solicitor for the respondent.  At the beginning of the Covid-19 pandemic, the respondent decided to place around half of its staff on furlough. The remaining staff were to carry on their work and oversee the cases of the furloughed staff.  The claimant was selected to continue working. However, on 23rd March 2020 the claimant met with the Head of Department who told her of the plans and that everyone would need to vary their contract.

The decision to vary the contract, she was told, was non-negotiable and if she disagreed, she would likely be met with a dismissal. The threat of dismissal was continued the next day when the Human Resources department emailed the varied contract with an instruction to sign within 24 hours. The variation in question was that the firm could unilaterally place an individual on furlough or reduce their pay by up to 20% with only five days’ notice.

The claimant notified HR that she was not signing the variation and she was continuing the job she was already contracted to perform. The refusal was forwarded to the Head of Department saying that it was unacceptable and that termination of employment is an alternative in this situation. The Head of Department sought to reconcile matters, yet the claimant was resolute in refusing to accept the variation.

 As a result, the Chief Operating Officer instructed HR to terminate the claimant’s employment without notice or accrued holiday pay.   The HR Director stated it would be a ‘breach of contract’ to do so but the COO insisted.  The claimant only became aware of this when her remote access was revoked and on making contact with her Head of Department she was informed of her dismissal.  The respondent subsequently paid the notice pay and holiday pay.

The Tribunal found that there had been good business reasons for the proposed variation.  The effects of the pandemic on the business meant that measures had to be taken.   For this reason, it was found that the dismissal could be seen on the grounds of some other substantial reason.  The question was whether the respondent had acted within the band of reasonable responses.  In making this argument, the respondent cited that the claimant was the only one out of 300 to refuse to sign the variation.

However, the Tribunal also found that there was no proper consultation and that the conversation with the Head of Department was one sided with no negotiation being entered.  Additionally, there was no other alternatives to dismissal explored, there was no appeal process offered.  Therefore, the dismissal fell outside the band of reasonable responses and it was found to be unfair dismissal.

Practical Lessons

This case demonstrates the way in which the law on unfair dismissal may be applied to issues of contractual variation in the face of the Covid-19 pandemic.  Interestingly, there was no comment on the fact that dismissal was used as a threat to begin with when it came to the variation.  Also, the Tribunal also outlined that it was ‘some other substantial reason’ for the dismissal considering the refusal to vary the contract in the face of the pandemic. This meant that it came down to the question of reasonable responses and whilst it was found in this case that it was outside of that band, it may be in other cases that where proper alternatives are considered and there is more of a consultative process that dismissals in this context may be regarded as fair.
https://assets.publishing.service.gov.uk/media/6075ade9d3bf7f401523637a/Ms_A_Khatun_v_Winn_Solicitors_Ltd_2501492-20_Reserved_.pdf