<
Latest in Employment Law>Case Law>An Employee v An Employer [2011]
An Employee v An Employer [2011]
Published on: 25/08/2011
Issues Covered: Dismissal Contracts of Employment Pay
Article Authors The main content of this article was provided by the following authors.
David Fagan
David Fagan
Background

FACTS

The claimant worked as a chef in the respondent’s licensed premises from July 2006. In October 2009, he was shown a new rota and was told he was expected to work six days a week, instead of his usual five. The claimant said this would mean he left home at 8am and would only return at 11pm six days a week. He told the Managing Director that he felt this was too much. The claimant alleges that the Managing Director said he was to work the six days or he would not have a job. In those circumstances the claimant resigned.

DETERMINATION 

The Tribunal stated that there was no formal process in place to consult with staff over the proposed changes to their working hours, the claimant perceived the six-day week to be the actual rota. It was not credible that the respondent said they were willing to compromise when they did not contact the claimant after his resignation. The Tribunal accepted as reasonable that the claimant felt there was no job for him, they found this to be an unfair dismissal and awarded him €9,000. 

LEGAL REVIEW

In the current economic situation, many employers wish to reduce employee wages or require employees to work longer for the same wages. Employers must remember that there is a contract of employment in place which governs the employment relationship. The employer cannot unilaterally change the terms and conditions, in the same way that an employee cannot insist on working fewer hours for higher wages.

Constructive dismissal is set out in section 1 of the Unfair Dismissals Act 1977 which states:

“the termination by the employee of his contract of employment with his employer…in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment…”

Therefore for constructive dismissal to be made out, an employee must show that he/she was entitled to resign or it was reasonable for him/her to resign because of the conduct of the employer. The role of the Employment Appeals Tribunal is not to award damages arising from a breach of contract but it will take the breach of contract into account when deciding if an employee was entitled to resign or if circumstances were reasonable. 

In this case, the employer changed the terms and conditions of employment and did not engage in consultation with the employees nor did he seek their acceptance of the new terms of employment. Although the employee did not seek to invoke the company’s grievance procedure, the EAT held that unfair dismissal was made out. 

The case Melligan v Karmarton Limited (UD101/2008) is a notable example in this regard. A sales executive successfully asserted constructive dismissal after his sales targets were trebled before he could earn a bonus. The EAT found that the unilateral imposition of the increase was unfair. The claimant had used the company's grievance procedure but the EAT stated that the findings of the grievance procedure had no connection to the evidence adduced. A very heated meeting took place, where up to five threats of dismissal were made against the claimant unless he met the imposed targets. 

The respondent was criticized by the EAT for failing to accede to the claimant's request to be accompanied to that meeting by a colleague. The EAT found that the contract of employment and terms and conditions of employment were being interfered with to such an extent that he could no longer continue in the workplace. Mr Melligan was awarded €60,000.

If an employer wishes to change terms and conditions, he/she should seek to engage in consultation with employees, he/she should set out the changes and the impact they will have on each individual. The employer should then ensure that employees agree to operate under the new terms before enforcing them. Alternatively, an employer may decide he can ‘takes his chances’; but he is exposing himself to the risk of successful unfair dismissal claims.

CONCLUSION

Employers should exercise a degree of caution in seeking to unilaterally impose changes to terms and conditions; and any changes should be considered fully before implementation.

Continue reading

We help hundreds of people like you understand how the latest changes in employment law impact your business.

Start your free trial now
Subscribe, or start free trial →
Already a subscriber?

Please log in to view the full article.

What you'll get:

  • Help understand the ramifications of each important case from NI, GB and Europe
  • Ensure your organisation's policies and procedures are fully compliant with NI law
  • 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
  • Receive free preliminary advice on workplace issues from the employment team

Already a subscriber? Log in now or start a free trial

Subscribe or start free trial
Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 25/08/2011
Recent Case Law
Q&A
How to handle it
Legal Island’s LMS, licensed to you Imagine your staff having 24/7 access to a centralised training platform, tailored to your organisation’s brand and staff training needs, with unlimited users. Learn more →