The EAT considered the correct approach for determining whether an employee has been subject to a dismissal in the sense of Hogg v Dover College [1988] ICR 39 (a Hogg dismissal). A Hogg dismissal occurs where an employer's purported unilateral variation of an employment contract amounts, in reality, to the termination of one contract and its replacement by another.
The claimant worked for the respondent NHS Trust as a band 6 specialist research nurse. After the respondent underwent a restructuring, resulting in the loss of the specialist research nurse position, the claimant was moved into a band 5 role with effect from 3 December 2018. The claimant refused to agree to the terms of the band 5 role and submitted a grievance before resigning. After the claimant retracted her resignation, the respondent made the claimant redundant and served her with eight weeks' notice. However, the parties could not agree as to when the eight weeks’ notice had started to run, which was relevant to the assessment of whether the claimant was entitled to a contractually enhanced redundancy payment. The claimant argued that the imposition of the band 5 role amounted to a Hogg dismissal, meaning that she had been serving her notice period since the band 5 role started on 3 December 2018. The respondent contended that her notice period had started running when she was made redundant and that, because she subsequently left her employment before the expiry of this notice period, she had forfeited her contractual redundancy pay entitlement.
The employment tribunal found that there had been no Hogg dismissal on 3 December because: (i) there had been no "radical change" under the new band 5 contract; (ii) the claimant had the skills to do the band 5 role imposed on her; (iii) the claimant had initially brought a grievance rather than resigning, which was inconsistent with the notion of her employment ending; and (iv) the respondent had no intention of dismissing the claimant when it imposed the band 5 role on her. This led the tribunal to conclude that the notice period had not started running from 3 December and therefore the claimant had left before the expiry of her notice, meaning she was not entitled to the enhanced contractual redundancy payment.
On appeal, the EAT found that the tribunal had erred in its reasons for finding that there was no Hogg dismissal in this case. HHJ Clarke held that the tribunal had applied the wrong test by focusing on whether there was a "radical change" to the contract terms such as to entitle the claimant to regard herself as constructively dismissed. This unhelpfully blurred the distinction between an express dismissal, into which category a Hogg dismissal fell, and a constructive dismissal. The correct test for a Hogg dismissal was "whether the particular contract under which the employee was employed by the employer at the relevant time was terminated by the employer." Furthermore, the tribunal had taken irrelevant matters into account, including consideration of whether the claimant was capable of doing the varied version of her job, the fact that she had raised a grievance rather than treating the variation as a dismissal, and the respondent's intention when it varied the contract.
In any event, the EAT would have allowed the appeal on the alternative ground that the judgment was inadequately reasoned and therefore non-compliant with Meek v City of Birmingham District Council [1987] IRLR 250 (see Employment Appeal Tribunal, Q&A here). The tribunal had failed to do a proper "before-and-after comparison" of the band 6 role and band 5 role to ascertain whether the new terms were of sufficient difference to amount to a withdrawal of one contract and its replacement by another. On this basis, the claim was remitted to a differently constituted tribunal for fresh consideration.
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First published on the Employment News Service on 4 August 2023.