Did an employment tribunal err in its approach when finding that the unilateral variation of a nurse’s contract to move her from a band 6 role to a band 5 role was not an actual dismissal in the Hogg v Dover College sense?

Yes, held the Employment Appeal Tribunal (EAT) in the recent case of Jackson v University Hospital.

Ms Jackson was employed as a band 6 specialist nurse. The Trust proposed to restructure to remove the specialist nurse function and creating a smaller number of band 6 posts with the remainder of posts being at band 5. Ms Jackson was not offered a band 6 post and was informed that she would be moved to a band 5 post with effect from 3 December 2018. There followed several months of dispute between the parties, including grievances, a resignation, a retraction of that resignation and a further resignation.

Ms Jackson was successful in claims for unfair dismissal and a statutory redundancy payment before the tribunal but the success of her claim for a contractual redundancy payment under Agenda for Change (which required employment to continue during the notice period for a payment to be payable) depended on whether she could rely on Hogg v Dover College (the principle that a purported variation of a contract, done unilaterally, can be such as to amount, in reality, to a termination of one contract and its replacement by another) to demonstrate an actual dismissal date of 3 December 2018.

The tribunal held that she could not, citing the fact that the change was not radical enough, Ms Jackson had the skills to undertake the band 5 role and that the Trust didn’t intend to dismiss her.

This reasoning was criticised by the EAT who confirmed that the tribunal should have done 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 Trust’s intention was not relevant and neither was the fact that Ms Jackson had the skills to undertake the band 5 role. The issue was remitted back to the tribunal.