Did the unilateral demotion of an NHS employee to a lower-grade post following a restructure amount to an unfair dismissal?
Did the unilateral demotion of an NHS employee to a lower-grade post following a restructure amount to an unfair dismissal?
Under what is known as the ‘Hogg principle’, an employee can claim unfair dismissal where their employer has unilaterally imposed new terms and conditions on them that are so radically different from their existing terms that the employer is in fact ending the old contract and imposing a different one, even if the employer does not expressly state that they are dismissing the employee (Hogg -v- Dover College [1990] ICR 39, EAT).
The Hogg principle is sometimes triggered in the context of a restructure, as illustrated by an EAT decision last year concerning a nurse who had been ‘slotted-in’ to a lower grade post as part of a restructure (Jackson -v- University Hospitals of North Midlands NHS Trust [2023] EAT 102 (see our report here)).
More recently, the EAT has considered whether an NHS employee could rely on the Hogg principle to claim unfair dismissal, after he was unilaterally demoted to a lower-grade post after a restructure. H was employed by the respondent NHS Trust as a Clinical Coding Quality Lead (a Band 6 post). As part of a restructure, the Trust proposed to reduce the number of Band 6 roles (although, due to vacancies, there would be no headcount reduction at Band 6). A lengthy restructure process took place, during which H and other Band 6s were required to compete for roles in the new structure. H was unsuccessful in securing any of the available Band 6 roles, so the Trust reassigned him to a Band 5 role instead. In response, H resigned and brought various employment claims, including constructive unfair dismissal. He was an unrepresented litigant in person throughout those proceedings. The employment tribunal dismissed all of H’s claims, so H appealed to the EAT.
The EAT upheld H’s appeal and held that the tribunal had erred in several ways in its handling of H’s case. Among other errors, the tribunal had erred when it concluded that H’s unilateral demotion to a Band 5 role (which involved his permanent loss of managerial duties and a circa £5k salary reduction) was not a breach of any of the express terms of H’s contract. This, in turn, rendered the tribunal’s conclusion that there was no fundamental breach of contract unsafe. The tribunal had also failed to properly direct itself by reference to the relevant case law authorities as to when breaches of express terms of the contract amounted to a fundamental breach of contract. Further, as H was a litigant in person, the tribunal ought of its own motion to have raised with the parties the question of whether the Trust’s actions amounted to an actual dismissal applying the Hogg principle (see above). The claim has been remitted to a new tribunal for a complete rehearing.
