Background
Ms Jackson was a band 6 nurse affected by a restructuring exercise within the University Hospitals of North Midlands NHS Trust (the Trust). Under an assessment procedure, she was not selected to remain in her band 6 role and was informed she would begin a new role in a band 5 post. This role had new terms and conditions and reduced pay, which she refused to accept. Ms Jackson disputed with her employer that she should be made redundant on enhanced terms under the “Agenda for Change”, which her employer in turn refused. Ms Jackson then raised grievances against her employer, which were rejected on the grounds that the new role was a suitable alternative. Ms Jackson’s employer accepted that she was dismissed by reason of redundancy from her band 6 role and served notice, but she resigned before the expiry of her eight-week notice period. As she resigned prior to the end of her notice period, her employer informed her that she was no longer eligible for enhanced redundancy pay under the relevant “Agenda for Change”.
The Employment Tribunal (ET) found in favour of Ms Jackson. She was successful in claims for unfair dismissal and a statutory redundancy payment. However, she had also claimed for the contractual redundancy payment under the “Agenda for Change” as, Ms Jackson argued, there was an actual dismissal on the date she moved to the new band 5 role. She tried to rely on the principle in Hogg v. Dover College that a unilateral variation of contract by an employer can amount to a termination of one contract and its replacement with another (known as a Hogg dismissal). The ET did not agree with her argument because the Trust did not intend to terminate her contract at that point and the change to a band 5 role was not substantial enough. Ms Jackson appealed this part of the ET’s judgment to the Employment Appeal Tribunal (EAT).
The EAT decision
The EAT ruled that the ET’s “analysis was flawed” and allowed the appeal. It noted that the ET was wrong to focus on the concepts of unfair dismissal and should have carried out “a proper before-and-after comparison” of the two roles to ascertain whether the terms were sufficiently different to amount to the withdrawal of one contract and its replacement with another contract. The EAT also noted that “whether variation constitutes termination is a matter of fact and degree” and stated that the ET erred in law in this judgment.
The EAT refused to substitute a decision that this was a Hogg dismissal and remitted that question to a different ET which, if deciding this was a Hogg dismissal, will also have to decide whether Ms Jackson was entitled to a contractually enhanced redundancy payment.
Key takeaways The underlying principle remains that employers need to carefully consider the impact of introducing new terms where these are not agreed, as they may inadvertently lead to a Hogg dismissal (although these are rare). Where there are substantial discrepancies between the terms and conditions in place before and after the change, a tribunal may find that a dismissal has occurred.
