An employee has been awarded over £17,000 after a tribunal found that she had been constructively dismissed following a unilateral change to her role, a failure to deal appropriately with her grievance and a reduction in the amount of sick pay paid to her.
The case of Gifford v Shetland Care Attendant Scheme is a reminder to employers of the importance of consulting employees prior to making significant changes to job roles or changes to contractual terms and conditions. It also highlights the importance of managing employee relations matters appropriately as a failure to do so can in its own right give rise to a constructive unfair dismissal claim.
The Facts of the Case
The employee worked part time for a charity as a Manager Co-ordinator. As part of her role she was responsible for day-to-day management and the Office Manager/Assistant Co-ordinator reported to her. When the Office Manager gained an additional qualification, she asked the board of directors for a pay rise during a board meeting. In response the Chairman proposed that the job titles of both the Manager Co-ordinator and Office Manager be changed to Joint Co-ordinator, that duties would be carried out jointly and one postholder would no longer report to the other. This was agreed by the other Directors and was to take place with retroactive effect.
The Manager Co-ordinator was unhappy about this as she had previously had sole management responsibility and there was no consultation with her in relation to either the principle or detail of the change to her role. She was not aware of what changes would be proposed to her own duties and responsibilities but considered that there would inevitably be a division of them between her and her colleague. She raised a grievance about the changes but rather than being invited to attend a grievance meeting she received a response from the Chairman rejecting the grievance. It stated, “It is not for a member of staff to dictate how a board should conduct its business……I am disappointed you feel so aggrieved.” The employee appealed the decision and was unsuccessful. There was no attempt at any stage thereafter by the employer to seek agreement with the employee on the sharing of duties and responsibilities.
The employee subsequently went off sick with work related stress. She was initially paid full pay for this as she and other colleagues had been in the past. However, the employer became concerned that whilst she was off sick from her role with them, she continued to do some work as a bank nurse for another organisation. The employer arranged for an Occupational Health Assessment to take place but neglected to inform the employee of the arrangements for this, so she did not attend. Following this the employer wrote to the employee to inform her that she was going to be paid Statutory Sick Pay only.
Shortly after this the employee resigned and claimed she had been constructively dismissed and had suffered an unlawful deduction from wages when her sick pay was reduced.
The employment tribunal upheld her claims. The judge found that the employer had fundamentally breached the contract of employment when it imposed the new terms in relation to her job role and reduced her sick pay. There had been no consultation about the significant changes to her role, these were simply imposed retroactively. Furthermore, the employer was contractually required to pay Company sick pay as they had done previously, there was no evidence that this was discretionary and that they were entitled to reduce it as they did. The judge also held that when the employer’s actions were looked at as a whole, including a failure to address the employee’s grievance appropriately, there had been a breach of mutual trust and confidence. The employee had been constructively unfairly dismissed.
The employer was ordered to pay £17,862.65 for the constructive unfair dismissal and £1,228.94 in respect of unlawful deductions from wages for the unpaid sick pay.
If you wish to make changes to the job role or terms and conditions of an employee in your organisation it’s important that you deal with the matter fairly and reasonably. In most cases, this will involve:
- Putting together a business case to explain the proposed changes, the reason(s) for them and when the Company proposes to implement them.
- Meeting with affected employee to consult them about the proposal to try to gain their agreement to the change(s). If the employee has questions, concerns or objections this can often involve meeting more than once during the consultation period.
- If the employee agrees to the change, this should be formalised using a variation to contract or issuing a new contract for the employee to sign, as appropriate.
It’s important to bear in mind that if the changes could affect 20 or more employees, there may be additional requirements that need to be met.
If agreement cannot be reached with the employee regarding the proposed changes simply imposing them can be a risky course of action as it can give rise to claims such as those for constructive unfair dismissal. However, depending on the circumstances of the case, an alternative route to achieve the desired change could be to dismiss the employee and offer to re-engage them on the new terms. However, this is not a step to be undertaken lightly as a proper process needs to be followed and the dismissal would need to be reasonable in the circumstances. As trying to make changes to job roles or terms and conditions can be particularly tricky, it’s important to seek advice on the facts of your case before taking any action.
An interesting point that was touched on in this case was that the employee was signed off as unfit for work with one employer but continued with her work as a bank nurse for another organisation. It’s important for employers to bear in mind that an employee in this situation is not necessarily doing anything wrong. It is possible for an employee with two employers to be unfit for work with one but able to continue to work their usual hours for the other. This is usually due to there being differences in the job roles. In the Gifford case, the employee was unfit for work for that employer due to her concerns over the changes to her working conditions there, whereas she was advised that it was helpful to her mental health to carry on with the bank work. If you have any concerns regarding an employee’s actions whilst off sick, it’s important to seek advice on your situation.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.