Summary Description:

No constructive dismissal when there was a shift pattern change; the contract did not stipulate an express pattern and there was due notice given of the change.

Background:

The claimant was employed by the respondent as a security guard.   He started in November 2021 and left in March 2023.  The contract of employment stated that the normal hours of work were 48 per week.  It did state that there could be changes and they would be confirmed in writing.

In January and February 2023, the claimant took an extended period of annual leave (to which there was flexibility shown towards the claimant).  During this period the primary contractor had employed a new guard at one of the locations and the respondent lost 16 shifts per month.  The claimant was informed that as a result he would have to work a ‘four on, four off’ on his return.   The claimant asked if he could keep Monday-Thursday shifts but they were no longer available.  This led to the claimant replying with expletives and the contract manager stated he would be referring him to HR.  The claimant subsequently ‘declined’ all shifts saying he had no interest in doing any shifts other than Monday-Thursday.

A meeting was arranged where three options were put to the claimant. This included working Monday-Thursday with reduced hours, having 48 hours but having to complete over the whole week rather than Monday-Thursday or working a rotation of four on, four off at the one depot.   The claimant replied refusing the options. This subsequently led the claimant to email stating that the respondent was in serious breach of his contract, and he was resigning under constructive dismissal.   This led to the claim being brought by the claimant.

Outcome:

It was for the Tribunal to determine whether the claimant was dismissed or had resigned. The respondent stated that there was no contractual breach as the days/hours had to be determined in line with requirement and the primary contractor.  The claimant argued that it was a ‘significant change’ and that required one months’ notice under the contract.  The respondent argued that it was not a significant change considering that the contract allowed for various locations to be covered and there was no working shift pattern actually outlined in the contract.

Examining these arguments the Tribunal found that the claimant’s claim for fundamental breach was not sustainable. The respondent had provided a series of options yet the claimant was unwilling to engage in any of those.  That meant that due notice had been given. As a result, there was no fundamental breach of contract and the claimant’s case was dismissed.

Practical Guidance for Employers:

The issue of whether there was a resignation or a dismissal in these situations can be complex and are contextually driven.  In this case a range of options were provided to the claimant for him to be able to make a decision, which is good practice.  These were in line with the contract as agreed and when there was a failure to engage and there was a resignation the respondent was able to demonstrate that there had been no fundamental breach of contract by them to the claimant.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/