Employment Rights Update – September 2017

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In this issue we are looking at changes to an employee’s contract, in particular where an employer unilaterally changes the hours that they work. We also look at the recent changes to the Vento bands.

Employment Law Update – September 2017


In the case of Gregory v Royal Mail Group Ltd 2402587/2016, Manchester Employment Tribunal upheld the Claimant’s claims for constructive unfair dismissal and wrongful dismissal and awarded him £22,000.

Background
The Claimant commenced employment as a Postman in 1993. In 2012, he made an application for flexible working, to work only Monday-Friday as he had childcare commitments on Saturdays. His request was approved in writing and contained the wording: “If you choose to accept this offer your Terms and Conditions of employment will change to reflect your new working hours and location requirements.” 

In 2015, the Respondent started a restructuring exercise, which was likely to involve changes in duties for those at the Claimant’s place of work. As part of this exercise, however, it was necessary for the union to ascertain from the workforce, preferences and any relevant working arrangements that the workforce wished to have taken into account in the restructure. A questionnaire was to be completed but the Claimant was on holiday when this was done and so his union rep completed this for him. He however selected a duty which would require the Claimant to work three Saturdays a month.

When the Claimant returned from holiday, he objected to this as it was incompatible with his agreed working arrangements. He then made another flexible working request. This was considered by a manager but rejected and the Claimant’s appeal against this decision was also rejected.

The Claimant did not work this new arrangement but around this time commenced a period of sickness absence due to stress. He raised a formal grievance while off sick in April 2016 and returned to work under a phased return in May 2016, not working Saturdays.

In June 2016, the Respondent sent the Claimant a letter confirming that he was to work three Saturdays a month. The letter stated that the new pattern would start on 14 July 2016 and there was no right of appeal.

The Claimant then resigned.

Judgment
Giving judgment, the Tribunal unanimously decided that the Claimant had been constructively unfairly dismissed and he was entitled to notice pay.

The Tribunal found that the Respondent had, in fact, no express contractual right to vary the Claimant’s contract as it purported to do and the content of the letter in June 2016 was “a unilateral and unwarranted variation of an express and important term of the claimant’s contract of employment, and was in itself a fundamental breach of contract entitling the claimant to resign and claim constructive dismissal”. 

The Tribunal went on to find that “even if not on the basis of the unilateral variation of the express term…the respondent was guilty of fundamental breach of [the implied term of mutual trust and confidence] in the manner in which it sought to vary the claimant’s contract.”

There had been an earlier set of proceedings, in which the Claimant claimed detriment for having made a flexible working request, which were settled by way of COT3. In the COT3, the Respondent had agreed that the Claimant had the express term in his contract as to his working pattern. The Tribunal went on to state:

“In the view of the tribunal the respondent’s actions, taken as a whole in, on the one hand, conceding the claimant’s contractual entitlement so as to settle his tribunal proceedings in May, and then, on the other, in June to seek to remove that entitlement, and to do so with only one month’s notice, with no right of appeal, must clearly be conduct likely to destroy the (already fragile…) relationship of trust and confidence.”

The Tribunal considered that had the Respondent recognised and acknowledged in 2015 that the Claimant had an agreed, contractually binding, term in his contract of employment that he would only work Monday-Friday, then “however inconvenient and costly for the respondent in terms of the restructure, it would have had no choice but to accommodate that working pattern”.

The Tribunal therefore held that the Respondent could not contend, in these circumstances, that its decision to impose the change that it did in June 2016 was with reasonable and proper cause.

Given that this is a decision at Tribunal level, it is not binding, but serves as a useful reminder for those advising employees facing changes to their contracted hours.

Of key importance, clearly, is the contact itself and in addition, any subsequent documentation dealing with changes to hours. It seems in this case that the Tribunal took a dim view of the Respondent’s actions in accepting (in the COT3) that the Claimant had an express term in his contract as to his working pattern and then, within a matter of weeks, seeking to enforce changes to his working hours.

This case also highlights that even if the unilateral variation of an express term is not sufficient to successfully claim constructive unfair dismissal, the actions of the Respondent may be (as they were in this case) conduct that was likely to destroy the relationship of trust and confidence.


Increase to the Vento Bands


Where a Claimant successfully pursues a discrimination claim, the Tribunal may make an award for injury to feelings. The Vento Bands are used by Tribunals when considering the amount of any such award for injury to feelings. They were initially identified by the Court of Appeal in Vento v Chief Constable of West Yorkshire (No.2) [2002] EWCA Civ 1871.

Following consultation, the Vento Bands have now been uprated. The new bands will apply to any claims issued on or after 11 September 2017 and are as follows:-

  • lower band (less serious cases): £800 to £8,400
  • middle band: £8,400 to £25,200
  • upper band (the most serious cases): £25,200 to £42,000
  • exceptional cases: over £42,000

Presidential Guidance has been issued. The Presidential Guidance will be reviewed in March 2018 and thereafter annually.

The rationale for the uprating is to take into account inflation and the 10% uplift following the decision in Simmons v Castle [2012] EWCA Civ 1039.

The Employment Tribunal does retain its discretion as to which band applies and where in the band the appropriate award should fall.

View full Vento Band Presidential Guidance.

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