EAT Contract of Employment – Implied term/variation/construction of term – In December 2013 the Council announced on their intranet in a notice headed ‘Voluntary Redundancy (VR) Information and guidance for employees’ that they had decided to undertake a process offering a generous VR package in 2014/15. The process was to cover ‘affected’ employees identified as such in a section 188 notice, which included the Claimants. The notice stated that all eligible employees would be contacted and invited to make an application for VR. In September 2014 the Claimants were told that VR would not be available to them and they were made compulsorily redundant with effect from 30 April 2015. They claimed damages for breach of contract based on the Council’s failure to allow them to apply for VR.
The Employment Judge decided that the Claimants had no contractual right to apply for VR because: (a) the Council had only offered an enhanced VR package in one previous year and it was unlikely to be repeated after 2014/15 so that there was no ‘policy’ such as to give rise to a contractual right; (b) only employees invited to apply for VR would be eligible and have a contractual right to do so and, anyway, those who did apply had no right to receive VR; and (c) employees within a pool whose role was being deleted had no right to apply for VR.
In so doing she erred in law in that:
(a) was irrelevant: there was no claim based on a ‘policy’ or ‘custom and practice’; the proper focus was on what the Council had communicated to its employees;
(b) was based on a misinterpretation of the notice: it was clear that ‘eligible’ and ‘affected’ employees were the same thing and the notice stated they would all be contacted and invited to apply for VR; the question whether VR would have been granted went to damages, not liability;
(c) there was no suggestion in any communication from the Council that there was such a restriction on the right to apply for VR and it was not possible to see the rationale for such a restriction or how it would have been framed.
The case would be remitted to the ET to decide whether, on a proper interpretation of the notice, there was a contractual right to apply for VR and, if so, what (if any) damages were suffered by the Claimants by not being afforded the opportunity to apply for VR.
Judges:
Shanks HHJ
Citations:
[2017] UKEAT 0072 – 17 – 0609
Links:
Jurisdiction:
England and Wales
Employment
Updated: 30 March 2022; Ref: scu.595009