The claimant asserted unfair dismissal after his contract was changed to provide that his post as head of the history department would be part time. He had been ill, and the head teacher reduced his teaching periods. He accepted the change in writing under protest in order to mitigate his loss. He said that the change in his contract terms was fundamental.
Held: The change in contract terms was sufficiently fundamental to amount to a repudiation of the contract and amounted to a dismissal. The definition of dismissal in section 55 referred to the termination of a contract of employment, not of the relationship of employer and employee.
If an employee makes it clear that he is accepting a repudiation of his original contract, the fact that he agrees to be re-employed under the new contract may not prevent him saying that he had been unfairly constructively dismissed under the old one. A court might legitimately treat as dismissal and re-engagement a situation where the employer ostensibly is merely seeking to vary the contract without effecting any dismissal as such at all.
Garland J said: ‘The trite law is that of course employment results from a contract. It is the contract at which one has to look, not the relationship of the employer and employee.
Up to 31 July, the applicant, who was well and sympathetically treated by the employers, was head of history; he was employed to teach full-time at a full salary plus such allowances to which he was entitled. On 31 July, he was told that he was no longer head of history; that he would not be employed full-time and he would come down to eight periods a week plus general studies and religious education; that the salary he would receive would be exactly half the new scale which superseded the Burnham scale.
It seems to us, both as a matter of law and common sense, that he was being told that his former contract was from that moment gone. There was no question of any continued performance of it. It is suggested, on behalf of the employers, that there was a variation, but again, it seems to us quite elementary, that you can vary by consent terms of a contract, but you simply cannot hold a pistol to somebody’s head and say: ‘henceforth you are to be employed on wholly different terms which are in fact less than 50 per cent of your previous contract. We come unhesitatingly to the conclusion that there was a dismissal on 31 July.’
Garland J
[1990] ICR 39
Employment Rights Act 1978 55(2)
England and Wales
Cited by:
Cited – British Broadcasting Corporation v Kelly-Phillips CA 24-Apr-1998
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been . .
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Watson v Ministry of Defence NIIT 7-Apr-2005
. .
Cited – Martin v Openwork Services Ltd NIIT 4-Oct-2007
. .
Cited – Hegarty v Software Ag (Uk) Ltd EAT 29-Jan-1999
. .
Cited – Shelton v Full House Restaurants Ltd EAT 18-Nov-2002
. .
Cited – London Borough of Hounslow v Miller EAT 28-Mar-2007
EAT Contract of Employment -and- Unfair Dismissal
The employee lodged two complaints, one of disability discrimination and one of unfair dismissal.
Tribunal Chairman stayed the complaint of disability . .
Cited – Clulee v Law Society of England and Wales EAT 29-Nov-2000
. .
Cited – Knodt v London Borough of Camden and Lowton EAT 22-Mar-2002
. .
Cited – Robinson v Tescom Corporation EAT 3-Mar-2008
EAT Contract of Employment – Damages for breach of contract – Implied term / variation / construction of term
Unfair Dismissal – Constructive dismissal
Unfair dismissal, breach of contract: whether . .
Cited – Lombard North Central Plc v Leach and Another EAT 26-Jul-1994
. .
Cited – J Sainsbury Plc v Moger 25-Feb-1994
The EAT should not accept an order by consent unless it is satisfied that there are good grounds for making the order. . .
Cited – S J Hardy v Tourism South East EAT 29-Nov-2004
EAT Redundancy – Collective consultation and information . .
Analogy – Vick v Vogle-Gapes Ltd TCC 30-Jun-2006
. .
Cited – Rajani v S Dory Ltd EAT 29-Jun-1994
. .
Cited – Steenhoff v Rother District Council EAT 20-Nov-1995
Constructive dismissal. . .
Cited – London Borough of Southwark v Johnstone and others EAT 26-Nov-1998
. .
Cited – Small Lots (Mix-It) Ltd v MacFarlane EAT 10-Dec-1998
. .
Cited – Noel v Employment Tribunal Service EAT 7-Jun-1999
. .
Cited – Noel v Employment Tribunal Service EAT 9-Feb-1999
. .
Cited – Woodhall v Greggs Plc (T/A the Bakers Oven) EAT 1-Oct-1998
. .
Cited – Woodhall v Greggs Plc (T/A the Bakers Oven) EAT 13-Apr-1999
. .
Cited – East Riding of Yorkshire Council v Walker and Another EAT 3-Dec-1999
. .
Cited – Chaffer v Southern Birmingham Community Health NHS Trust EAT 21-Sep-2001
. .
Cited – Roberts v West Coast Trains Ltd EAT 24-Jul-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Hepworth Heating Ltd v J Akers and others EAT 21-Jan-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Council of the City of Newcastle Upon Tyne v Allan and Others, Burr, Bell EAT 21-Mar-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .
Cited – Edem v Egg Plc, J Croft EAT 16-Jan-2006
EAT Practice and Procedure – Striking-out/dismissal – Contract of Employment: Damages for Breach of Contract
On Respondent’s application the Employment Tribunal struck out a variety of the Appellant’s . .
Cited – Winder v Aston University and Another EAT 1-Aug-2007
EAT Equal Pay Act – Part time pensions
In deciding two cases in accordance with Preston v Wolverhampton NHS Trust (No 3) [2004] ICR 993 EAT, the Employment Tribunal did not err in holding that the Claimant . .
Cited – Tait v Redcar and Cleveland Borough Council EAT 2-Apr-2008
EAT Jurisdictional Points – Claim in time and effective date of termination
The Appellant employee brought a claim (inter alia) that he had been subjected to a disciplinary suspension because he was a . .
Cited – Alcan Extrusions v Yates and others EAT 5-Feb-1996
The employers appealed against a decision that it had constructively dismissed the respondents by substantially changing their employment terms.
Held: The tribunal approved the chairman’s statement that ‘the applicants’ former contracts of . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 01 November 2021; Ref: scu.211374