EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – The Claimant’s case before the ET had been one of direct dismissal for the purpose of section 95(1)(a) Employment Rights Act 1996, specifically whether the contract under which the Claimant was employed had been terminated by the Respondent’s conduct in not rostering the Claimant for any work for the week commencing 4 November 2013. Having rejected the Respondent’s case that the Claimant had accepted a bank contract, the ET nevertheless found that the Respondent’s conduct, in not scheduling any shifts for the Claimant for the week commencing 4 November 2013, amounted to an exercise of its right to vary his working hours in accordance with local variation, as permitted under his employment contract.
It was, however, unclear whether the ET was thus finding that the Respondent was exercising an existing right to vary the Claimant’s working hours or that it was thereby varying the Claimant’s contract of employment; the ET’s reasoning allowed for both readings.
If it had found that the Respondent was exercising its right to vary the Claimant’s working hours under an existing contractual right, it was unclear – in the light of the ET’s other findings – how it found that to be the case given the wording of the clause in question.
If the ET had found the Respondent’s conduct amounted to a variation of the Claimant’s contract, the question was whether it brought that contract to an end and gave rise to a new contract (Hogg v Dover College [1990] ICR 39; Alcan Extrusions v Yates [1996] IRLR 327). Although the Claimant’s case may not have been expressly labelled as giving rise to a Hogg/Alcan dismissal, he was clearly relying on the Respondent’s conduct as having brought his existing contract to an end such as to give rise to a direct dismissal for section 95(1)(a) purposes. He was thus not raising a new argument on appeal but one that, in substance, he had sought to pursue before the ET. As the ET’s reasoning did not properly provide an answer to that case, the appeal would be allowed and this point remitted to the same ET for reconsideration.
Eady QC HHJ
[2015] UKEAT 0445 – 14 – 1307
Bailii
England and Wales
Employment
Updated: 04 January 2022; Ref: scu.552422