Cox v. Northern Devon Healthcare NHS Trust

A unilateral change to an employee’s work away from the contractual department, without the employee’s agreement where agreement is required, may amount to a fundamental breach and constructive dismissal. The reason for resignation must, however, be identified separately from any other breach found by the tribunal. A finding of constructive dismissal does not itself determine whether the dismissal was fair or unfair. Compensation cannot be limited to the contractual notice period without adequate reasons addressing the likelihood and timing of a fair dismissal, the employer’s responsibility, and any contribution by the employee.

The claimant brought proceedings concerning detriments following protected disclosures and an alleged constructive unfair dismissal. The Employment Tribunal found that the respondent had breached the claimant’s contract by requiring him either to work in the IT department or take unpaid leave, and treated that breach as constructive dismissal. It nevertheless limited compensation to five weeks’ pay, reasoning that the employment relationship had irretrievably broken down and that the respondent could fairly have dismissed him for some other substantial reason.

The respondent cross-appealed the finding of constructive dismissal. The claimant appealed the finding that compensation could be confined to the notice period. The central issues were the breach causing the resignation, the characterisation of the respondent’s conduct, the fairness of the constructive dismissal, and the proper approach to remedy.

1. Constructive dismissal. The Employment Tribunal wrongly treated the breach causing the resignation as the requirement to work in IT or take unpaid leave. The resignation was directed to the refusal to reinstate the claimant in the Estates Department.
2. The Tribunal was also wrong in law not to characterise the announcement that the claimant would not return to Estates Department work as a fundamental breach. It had correctly regarded the unilateral requirement to work in IT as a fundamental breach of the contractual term requiring agreement to changes in duties or responsibilities. The same reasoning applied to the exclusion from the Estates Department.
3. Fairness. The Tribunal’s reasons did not adequately explain whether the constructive dismissal was fair or unfair, or the basis for that conclusion. The issue required reconsideration.
4. Remedy. The reasons for limiting compensation to five weeks’ notice were too scanty to permit appellate review. The Tribunal had to consider whether there would have been a fair dismissal, and if so when; whether the respondent’s responsibility meant that compensation should be at large; and whether any deduction should be made for the claimant’s contribution. The correspondence and other evidence, including the likely duration of relevant dismissal and appeal procedures, required proper consideration.
5. It was open to the Tribunal, on a fully reasoned decision, to reach any sustainable conclusion. The appeal and cross-appeal were upheld to the stated extent and the case was remitted to the same Tribunal for further consideration on submissions only, with no further evidence.

• Employment Appeal Tribunal: The claimant’s appeal and the respondent’s cross-appeal were upheld to a limited extent. The issues of constructive unfair dismissal and remedy were remitted to the same Employment Tribunal for further consideration.
• Employment Tribunal: The Tribunal had found constructive dismissal arising from the proposed IT redeployment or unpaid leave and limited compensation to five weeks’ pay.