A Judgment was recently handed down by the Employment Appeal Tribunal in the case of Miss Clare Jackson v The University Hospitals of North Midlands NHS Trust [2023] EAT 102 which we consider is an interesting and useful one for the Trust to note.
This case concerned Clare Jackson (CJ) who worked for the North Midlands NHS Trust (the NM Trust) as an acute care research nurse. In 2013 she moved into a more specialist, Band 6, role of a senior haematology research nurse.
The department CJ worked within was restructured in 2018, and as part of that restructure the NM Trust decided to reduce the number of these Band 6 specialist research posts. Existing staff (including CJ) were invited to apply for the reduced number of Band 6 positions and, if unsuccessful, would be slotted into new, Band 5, “research practitioner” posts with two years’ pay protection.
CJ was unsuccessful in applying for one of the Band 6 posts and so was informed by letter on 13 November 2018 that she would be slotted into one of the Band 5 roles with effect from 3 December 2018. There were new terms and conditions for this role which CJ refused to sign. She argued to the NM Trust that she should be made redundant on enhanced Agenda for Change terms and that, if the NM Trust would not agree to this, she would consider herself to have been unfairly and constructively dismissed.
When the NM Trust refused to make her redundant, CJ raised grievances, arguing that the Band 5 post was not suitable alternative employment for her, because it was a more generic position which did not require the specialist skills.
The NM Trust did not uphold her grievance initially, taking the position that the Band 5 role did constitute suitable alternative employment for CJ.
CJ resigned on 28 December 2018, in response to her grievance not being upheld. She then appealed the grievance decision and the NM Trust gave her the opportunity to decide whether she still wished to resign or whether she wanted to withdraw her resignation instead. CJ responded to request that the deadline for her to decide this be extended so that her appeal could be concluded, which the NM Trust agreed to.
CJ’s appeal was upheld and the NM Trust said that, if CJ withdrew her resignation, she would receive 8 weeks’ notice of termination for redundancy and that redeployment would be explored in the meantime.
CJ then withdrew her resignation but argued that her 8 weeks’ notice should apply from 3 December 2018 (the date that she had been slotted in to the Band 5 role) instead. The NM Trust did not accept this argument and so CJ re-instated her resignation from 28 December and stated that she considered herself constructively dismissed, with her employment ending on 28 January 2019. The NM Trust acknowledged receipt of this and told CJ that, as she had left before the expiry of her notice, she had forfeited her entitlement to any contractual or statutory redundancy pay.
CJ brought a claim in the Employment Tribunal for unfair dismissal, redundancy pay and notice pay.
The Employment Tribunal held that CJ had been unfairly dismissed, that the reason for the dismissal was redundancy and therefore it awarded her a statutory redundancy payment. It however rejected the Claimant’s claim for contractual redundancy pay.
In determining this, the Tribunal considered whether CJ had been subjected to a “Hogg” dismissal on 3 December 2018.
A “Hogg” dismissal is a concept taken from the case of Hogg v Dover College. It refers to the principle that, in circumstances where an employer decides to unilaterally impose a change to terms and conditions of employment on an employee, that employee can continue to work under the new terms and conditions whilst also asserting that they have been “dismissed” from their old contract, and can therefore claim unfair dismissal on this basis. This sort of dismissal can only be argued where the changes imposed on the employee are sufficiently significant to amount to a termination of the old contract and imposition of a new one.
A “Hogg” dismissal is therefore what CJ argued had taken place on 3 December 2018, when the Band 5 contract was imposed on her.
The Tribunal held that the Claimant was not subjected to a “Hogg” dismissal on this date, reasoning that the Band 5 terms and conditions did not amount to a sufficiently “radical change” and that CJ still had the skills to do this role. The effect of this decision was that CJ was held to have been “dismissed” with effect from a later date, before her notice period had expired, which meant that she forfeited her entitlement to the contractual redundancy payment.
CJ appealed this decision in respect of her entitlement to contractual redundancy pay, which was considered by the Employment Appeal Tribunal.
The Employment Appeal Tribunal criticised the Tribunal’s reasoning as to why a “Hogg” dismissal did not apply in this case, and held that the Tribunal should have undertaken a proper comparison of the Band 6 post against the Band 5 post to determine whether the new terms were sufficiently different to amount to a withdrawal of CJ’s old contract and its replacement by another.
The Appeal Tribunal did not make its own determination on this point, but has remitted the question back to be decided by a different Employment Tribunal.
This is quite an unusually messy, and unique case in terms of the way that CJ raised grievances, resigned, withdrew her resignation and then resigned again, and the effect all of this had on her potential right to contractual redundancy pay. However, looking beyond this, the case serves as an important reminder to NHS Trusts that, when undertaking a restructure process and looking at “slotting-in” employees, it is not always safe to assume that slotting an employee into a post which appears on the face of it to be similar to their existing post, and is graded only one band lower, will not have any legal repercussions, even if the employee does not immediately resign as a result of the change.
Proper consultation with employees in this situation should, in many cases, flush out instances where someone is likely to take issue with the role they are being slotted into. In addition, NHS Trusts should ensure they have undertaken a proper and thorough comparison exercise of the employee’s old role as against the proposed new one, to be sure that the employee will not have good grounds, as in this case, to continue working in their new role whilst also asserting that they have been unfairly dismissed from the old one on the basis that the imposed changes to their terms and conditions are significant.
It will be interesting to see in due course whether the Employment Tribunal finds that the Hogg principles do apply to this case or not, having done the close comparison of this particular Band 6 role as against the Band 5 one.
The case also serves as a reminder to NHS Trusts to be clear, and to seek advice if necessary, as to whether a redundancy situation has arisen within a restructure process, because of the potential redundancy payment liability which could arise in the event that suitable alternative employment is not found.
For more information, please contact Kirsty Cooke or Rachel Barnet.
