REWARD
The ET also found that as she hadn’t received any holiday pay, because the respondent incorrectly considered her to be self-employed, she was entitled to holiday pay for the entirety of her employment. Jackson v University Hospitals of North Midlands An Employment Appeal Tribunal (EAT) had to consider whether an ET had incorrectly approached the question of whether a change in the claimant’s terms was sufficient to amount to a dismissal, and therefore whether she could be entitled to an enhanced redundancy payment. The claimant worked for the respondent as an acute care nurse from 2010 and moved in 2013 to the specialist role of senior haematology research nurse within the research and development directorate. In 2018, the respondent decided to restructure the research and development directorate for cost saving reasons. The claimant was unsuccessful in her application for one of the band six positions and was informed that she would be moved into a band five role from 3 December 2018. Due to the differences in the roles, the claimant argued she should have been made redundant and received the enhanced redundancy payment in accordance with the Agenda for Change terms. Under this policy, however, an employee is only entitled to the enhanced contractual redundancy payment if the full notice period is served. It was the claimant’s position that the band five role wasn’t suitable alternative employment because it was such a different role. The claimant raised a grievance but when this was rejected, she resigned. The claimant brought claims for unfair dismissal and claimed she was owed contractual redundancy pay and notice pay. The ET found that the claimant was unfairly dismissed by reason of redundancy, but in respect of the redundancy pay found that she was only entitled to statutory redundancy pay and not the contractual payment. The claimant appealed to the EAT in respect of the contractual redundancy pay element only. The claimant argued that the ET had incorrectly applied the principle from the Hogg v Dover College case, which found that if the changes to a contract
are so large, it can amount to a termination and replacement of contract, rather than just a change to the original contract. “The claimant argued that the employment tribunal had incorrectly applied the principle from the Hogg v Dover College case, which found that if the changes to a contract are so large, it can amount to a termination and replacement of contract, rather than just a change to the original contract” This is key, because if it was a new contract that was issued on 3 December 2018, the claimant would have served her full notice period and be entitled to the enhanced redundancy payment in accordance with the Agenda for Change terms. If, however, the role wasn’t sufficiently different, it would just be a change to her existing contract, and as such, she wouldn’t have worked her full notice period and so wouldn’t be entitled to the enhanced redundancy payment. The EAT found that the ET should have carried out a comparison of the band six role and the band five roles to ascertain whether the new terms were sufficiently different to constitute a withdrawal of one contract and replacement by another. As they failed to do so, the EAT has remitted the case back to a new ET for this to be considered. Garcha-Singh v British Airways plc The question of whether the ET’s decision that the respondent’s repeated postponement of a claimant’s termination date was not an unfair dismissal, was considered by the EAT in this case. The claimant worked for the respondent
as cabin crew long haul from February 1997. The employee was absent due to an illness for a lengthy period, and the respondent decided to terminate his contract of employment on 31 August 2017, to take effect on 5 January 2018. The respondent, however, decided to extend the termination date on a total of seven occasions. The effective date of termination was ultimately 21 December 2018. The termination date was postponed so that further medical information could be obtained and so that the claimant could also receive further medical treatment. Matters culminated in the respondent attempting to arrange an occupational health assessment with the claimant on 20 or 21 December 2018, but the claimant was unwilling to participate in such an assessment. Consequently, the respondent wrote to the claimant to state that, as it wasn’t possible to assess his fitness for a return to flying duties, the termination date wouldn’t be postponed any further. The claimant brought a claim of unfair dismissal to the ET, but he was unsuccessful. The ET found that on 21 December 2018, there was very little to suggest that the claimant was able and willing to fly. The ET were satisfied that the respondent had reasonable grounds for its belief in the claimant’s incapacity. They found that the claimant’s absence affected the respondent’s staffing levels and that after two years, the impact would have been significant. The ET found that they were satisfied that the decision to dismiss was within the band of reasonable responses and therefore the dismissal was found to be fair. The claimant appealed to the EAT citing that the ET failed to recognise that the respondent’s actions were not in accordance with their absence management policy (AMP). The claimant argued that the ET should have asked itself whether a reasonable employer would have consistently amended the termination date which, it was alleged, was in breach of the AMP. The EAT found that there was no breach of the AMP as it didn’t stop a manager from postponing the termination date. The EAT also found that it was clear from the ET judgment that there was no substantive unfairness to the claimant, as each of the postponements were to his advantage. The claimant’s appeal against the ET finding therefore failed. n
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| Professional in Payroll, Pensions and Reward |
Issue 94 | October 2023
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