The employees were sewing machinists employed in the employers’ upholstery factory. Because of a downturn in work, the employers decided to transfer them to their bedding factory, which was very nearby. The work at the bedding factory would be less skilled but was essentially of the same character. The intention was that the transfer would be temporary only, and on terms which protected the employees’ earnings. The employees refused to transfer and resigned and claimed (constructive) unfair dismissal. The Industrial Tribunal held that the employers had not been entitled to require the employees to transfer and that they had accordingly indeed been constructively dismissed.
Held: The appeal failed. Removing a member of staff from a position of responsibility against his or her will is likely to lead to dissatisfaction and low moral, and might even amount to construct dismissal.
Browne-Wilkinson P said: ‘The first question must be whether the requirement to transfer to the bedding department does constitute a breach of contract. We can accept that if an employer, under the stresses of the requirements of his business, directs an employee to transfer to other suitable work on a purely temporary basis and at no diminution in wages, that may, in the ordinary case, not constitute a breach of contract. But in saying that, we think it must be clear that the word ‘temporary’ means a period which is either defined as being a short fixed period, or which, as in the Aveling Barford [1977] IRLR 419 case, is in its nature one of limited duration. Similarly, when dealing with no diminution in wages, we think it is clear that it is on the employers to bring home to the employee, that the order to transfer is on the basis that there will be no diminution in wages. When one refers to this case, first of all, although the transfer was temporary, it was of unlimited and very uncertain duration, because it was to last until the work in the upholstery department picked up again. Secondly, as to the wages, although the Industrial Tribunal found that it was Mr Kroll’s intention to make it clear that he was guaranteeing that their wages would not be decreased, the ladies certainly did not understand that. The statement that there would be no drop in money is ambiguous. It could either mean ‘I forecast that with your skills you will make enough or at least as much money in the bedding department’, or it might mean a guarantee ‘Whatever happens, we will see that you get the same amount of money’. It is inherent in the decision of the Industrial Tribunal that it was not made clear to the employees that they would suffer no diminution of wages in any event.’
Judges:
Browne-Wilkinson P J
Citations:
[1981] IRLR 309
Cited by:
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EAT Unfair Dismissal
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Contract of Employment – Implied term
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Lists of cited by and citing cases may be incomplete.
Employment
Updated: 02 May 2022; Ref: scu.416752