Jackson v University Hospital of North Midlands NHS Trust

The Case

In the case of Jackson v University Hospital of North Midlands NHS Trust the claimant was originally employed as a band 6 specialist nurse.

The respondent proposed to restructure its nursing provision, removing the specialist nurse function and creating a smaller number of band 6 senior nursing posts with the remainder of posts being at band 5. The claimant was unsuccessful following assessment for a band 6 post and was informed on 13 November 2018 that she would be moved to a band 5 post with effect from 3 December 2018.

There followed several months of dispute between the claimant and the respondent, including grievances, a resignation, a retraction of that resignation and a further resignation!

The Decision

The claimant was successful in claims for unfair dismissal and a statutory redundancy payment before the tribunal. She was not successful in her claim for a contractual redundancy payment.

She was potentially eligible for an enhanced contractual redundancy payment under the respondent’s Agenda for Change scheme. However, in order to be eligible, she had to be employed during her notice period.

On the facts this would only have been the case if she could show that the unilateral change from the band 6 role to the band 5 role on 3 December 2018 was an actual dismissal in the Hogg v Dover College sense.

The tribunal initially found that this wasn’t a Hogg v Dover College dismissal, giving several reasons, all of which were challenged by the EAT:

That the change in contract of employment was not radical enough for the claimant to consider that she had been constructively dismissed. The EAT held that reason could not be relied upon – the claimant was claiming actual dismissal not constructive dismissal. The question which the tribunal should have asked was whether her old contract had been terminated and replaced by another.
That the claimant had the skills to do the band 5 role. Again, the EAT held that this was not the correct test. In Hogg itself, Mr Hogg was able to do the new role given to him. The point was not relevant.
That the claimant raised a grievance which was inconsistent with her employment having ended. The EAT found that this point was irrelevant. The question was not whether employment in the broader sense had ended, but whether the old contract had been brought to an end. If the old contract had been terminated and a new contract imposed, there was no mechanism by which an employee could affirm the old contract
That the respondent did not intend to dismiss the claimant. The EAT held that this will never be the case in a Hogg v Dover College dismissal. Intention is irrelevant.

The EAT held that, in a Hogg v Dover College case, what the tribunal needed to do was a proper before-and-after comparison of the band 6 post and the band 5 post to ascertain whether the new terms were of sufficient difference to amount to a withdrawal of one contract and its replacement by another. The EAT also held it doesn’t have to be a particularly severe breach of contract by the employer for it to amount to a Hogg v Dover College dismissal. The normal position on repudiatory breach applies.

The EAT remitted the question of whether the imposition of the band 5 role on 3 December 2018 amounted to a Hogg v Dover College dismissal (and therefore whether the claimant was entitled to enhanced contractual redundancy pay under Agenda for Change) to the tribunal. Hogg v Dover College dismissals are rare but they serve as a reminder to employers of the perils of unilaterally imposing changes to terms and conditions on employees.