M Rajput & Anor v Sky Retail Stores Limited
[2024] EAT 46
Clare Jackson v The University Hospitals of North Midlands NHS Trust
19 July 2023
[2023] EAT 102
Employment Appeal Tribunal
A nurse was moved to a lower role. She said she was unfairly dismissed and should get extra redundancy pay. The first judge got it wrong, so a new judge will look at the case again to see if the hospital effectively fired her then offered her a new job.
Key Facts
- •Clare Jackson (claimant) worked for University Hospitals of North Midlands NHS Trust (respondent) as a senior haematology research nurse.
- •The respondent restructured, leading to the claimant's unsuccessful application for a new band 6 post and subsequent placement in a lower-paid band 5 role.
- •The claimant refused the band 5 role, claiming redundancy on enhanced terms under Agenda for Change (AfC).
- •The respondent rejected her grievance, and the claimant resigned, later withdrawing her resignation after a successful grievance appeal.
- •The Employment Tribunal (ET) found the claimant unfairly dismissed but not entitled to contractually enhanced redundancy pay because she resigned before her notice period ended.
- •The claimant appealed to the Employment Appeal Tribunal (EAT) regarding the contractual redundancy payment.
Legal Principles
Hogg v. Dover College principle: Unilateral imposition of radically different contract terms can amount to dismissal, even if the employee continues working.
Hogg v. Dover College [1988] ICR 39
AfC terms: NHS employees forfeit redundancy pay if they leave before notice expiry unless earlier release agreed.
Agenda for Change (AfC) terms and conditions of service, section 16.20
Constructive dismissal: Repudiatory breach of contract by the employer must be accepted by the employee.
Case law on constructive dismissal
Unfair dismissal: A dismissal can be unfair whether express or constructive.
Employment Rights Act 1996
Meek compliant judgment: Judgments must be adequately reasoned.
Meek v City of Birmingham District Council
Outcomes
The EAT allowed the appeal.
The ET erred in law by failing to properly apply the Hogg principle when determining whether the claimant's contract was terminated by the imposition of the new band 5 role. The EAT found the ET's reasoning flawed and not Meek compliant.
The case was remitted to a different ET.
The EAT deemed it inappropriate to substitute its own decision on the factual question of whether a Hogg dismissal occurred. A new ET can conduct a proper before-and-after comparison of the old and new roles to determine if the terms were sufficiently different to constitute dismissal.