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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rogers v Microblade Ltd [2009] UKEAT 0041_09_1906 (19 June 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0041_09_1906.html Cite as: [2009] UKEAT 0041_09_1906, [2009] UKEAT 41_9_1906 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR B BENYON
MRS DM PALMER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS KERRYSMITH (of Counsel) Instructed by: Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield South Yorkshire S1 4QL |
For the Respondents | MR MARK SAHU (of Counsel) Instructed by: Messrs Halliwells LLP City Plaza Pinfold Street Sheffield South Yorkshire S1 2GH |
SUMMARY
UNFAIR DISMISSAL: Dismissal
Dispute as to change in terms and conditions. Employer's letter referring to 'old contract' ending and re-engagement under 'new contract'. ET found no dismissal under s95(1)(a). Plainly wrong. Claimant appeal allowed.
HIS HONOUR JUDGE PETER CLARK
Background
"Dear Russell
Further to your interview of 16th June 2004. Please accept this letter as confirmation of your employment at Microblade Limited.
I can confirm that your start date will be Monday, 12th July 2004, and your shift hours are 6pm to 6am, Monday thru Thursday."
"Dear Russell
Contract of Employment with Microblade Limited
I refer to our previous consultations and discussions in the above which commenced some five weeks ago when we notified you in our letter of 17th March that the night shift is being discontinued because of the needs of the business.
I enclose herewith your new Contract of Employment which sets out all your entitlements and confirms the new shift pattern. As you can see your continuity of employment will not be affected nor will any or your accrued benefits. Please ensure you sign a copy of the new Contract and leave it with the Personnel Department in order that you can commence work as planned at 2pm on Monday, 21st April 2008. Although your old Contract comes to an end on 21 April you are immediately reengaged under the new Contract whenever you sign it."
The enclosed contract document provided at clause 4.1 provision for working either the morning or afternoon shifts.
"[…] work the new patterns under protest while commencing legal proceedings to recover losses at the Employment Tribunal."
The Employment Tribunal Decision
"The law on the definition of dismissal is contained within Section 95 Employment Rights Act 1996. The EAT cases referred to above contain a number of points relating to the construction of dismissal."
"5 However, it would appear that the process of ensuring any variation was not imposed unilaterally has led to confusion for some staff. Given this confusion, the Society has decided that new notices of termination will be issued to relevant staff to expire on 30th April, with the offer of re-engagement commencing 1st May 2006 on the new terms incorporating the variation and with all other terms and conditions remaining unchanged.
6 The purpose of this letter is to give you notice of termination of your present terms of employment to expire on 30th April 2006, rather than on 16th March 2006, but that you will have the option to agree to re-engage on new contractual terms of employment commencing 1 May 2006 incorporating the withdrawal of your company car as it is not applicable to your job role/grade. All other terms and conditions of employment will remain the same."
The EAT held that in these circumstances the Claimants were dismissed and then re-engaged on fresh terms.
"23 The key point for the tribunal was the fact that the dispute between the respondent and the claimant around changing contracts and hours of work had been going on for over a year and had been dealt with within a grievance setting.
24 The tribunal therefore believes that the words used by Mr Egley in the letter of 17 April 2008 were not words of dismissal, but words attempting to amend Mr Rogers' terms and conditions of employment. Mr Rogers was not dismissed.
25 The tribunal accepts that the respondent did not wish to dismiss Mr Rogers. It had gone into lengthy discussions with him, but the night shift was finishing and there really seemed very little else that the respondent company could do in this case.
26 The tribunal does not attach any blame to Mr Rogers for taking the stand that he did, but the letter of 17 April 2008 cannot be construed as constituting a dismissal. This case is distinguished from the case of Darby and Still v The Law Society of England and Wales because of the words used in the letter.
27 Issues listed in paragraph 5.3 to 5.15 inclusive were not decided because the tribunal found that no dismissal had taken place."
The Appeal
"I enclose your new contract of employment […] although your old contract comes to an end on 21 April you are immediately re-engaged under your new contract whenever you sign it."
Disposal