Kumbu v Primelife

For the purposes of section 95(1)(a) of the Employment Rights Act 1996, a tribunal must determine whether the employer’s conduct terminated the employee’s existing contract. A contractual power to vary working hours may permit an alteration in performance, but the tribunal must identify how that power applied to the facts. If the employer instead varied the contract, it must decide whether the change terminated the old contract and replaced it with a new one.

An unrepresented employee need not formulate the case using the labels supplied by authorities. The tribunal must address the substance of the case. Reasons which leave either analysis unresolved do not adequately answer a claim of direct dismissal.

The Claimant had been employed as a care assistant under an hourly-paid contract which allowed the Respondent to vary his scheduled hours in line with local variations if business needs altered. Following a change in management and shift arrangements, he was not rostered for any work in the week beginning 4 November 2013.

The Manchester Employment Tribunal rejected the Respondent’s case that he had agreed to become a bank worker. It nevertheless dismissed his unfair-dismissal and notice-pay claims, holding that the non-rostering was an exercise of the contractual hours clause. The Claimant appealed only the dismissal claims, contending that the Respondent’s conduct had ended his permanent contract and substituted a materially different arrangement.

1. Appeal allowed. The Employment Tribunal’s reasoning did not adequately determine whether the Claimant had been directly dismissed within section 95(1)(a) of the Employment Rights Act 1996.

2. The Claimant’s case was one of actual dismissal, not constructive dismissal. Although he had not described it by reference to Hogg or Alcan, an unrepresented litigant was not required to use lawyers’ labels. The material issue before the Employment Tribunal was whether the Respondent’s failure to roster him for the relevant week terminated his existing employment contract.

3. The Employment Tribunal’s conclusion was ambiguous. It might have found that the Respondent exercised an existing contractual right to vary hours. If so, it had not explained how non-rostering the Claimant for the whole week fell within the contractual clause, given the new local three-day/four-day arrangement. Alternatively, it might have found that the Respondent varied the contract. In that event it had to decide whether the variation terminated the old contract and replaced it with another, thereby amounting to a dismissal.

4. The Employment Tribunal’s reasons therefore failed to provide an answer to the substance of the Claimant’s case. The appeal was not a wholly new point of law, because that substance and the relevant facts were before the Employment Tribunal.

5. The case was remitted to the same Employment Tribunal for reconsideration on its existing findings, with the Employment Judge sitting alone. Further evidence and factual findings were unnecessary, although further submissions could be received.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the unfair and wrongful dismissal issues to the same Employment Tribunal.
• Manchester Employment Tribunal: On 22 and 23 July 2014, dismissed claims for unfair dismissal, race discrimination and notice pay. The appeal concerned only unfair and wrongful dismissal.