Lees v Imperial College Of Science Technology And Medicine (Redundancy)

Where an employee is engaged to perform a particular job, an employer’s proposal no longer to provide that work will usually be a fundamental breach of contract. The question is whether the employer proposes to perform its contractual obligations, including any express flexibility clause, rather than whether it has acted in breach of the implied term of trust and confidence.

If the burden of proof in an age-discrimination claim has shifted, the respondent must disprove the alleged material influence on the balance of probabilities. The tribunal must not require the claimant’s inference to be necessary or supported by a compelling reason.

The claimant had been employed by the respondent for nearly 28 years and was seconded as Joint Assistant Director of a clinical trials unit. When that unit was to close, the respondent sought to retain her by offering another post. The Employment Tribunal held that the offered post was unsuitable and had not been unreasonably refused, but rejected her claims for a redundancy payment and direct age discrimination.

The claimant appealed. The central issues were whether her resignation amounted to a constructive dismissal for the purposes of the Employment Rights Act 1996, and whether the Tribunal had correctly applied the burden of proof on the age-discrimination claim.

1. Appeal allowed. The Employment Tribunal had approached constructive dismissal incorrectly. It concentrated on the implied term of trust and confidence, rather than asking whether the respondent proposed to continue performing the contract under which the claimant was employed.

2. It is ordinarily of the essence of a contract for a particular job that the employer makes that work available. Where it will not continue to provide the contracted work, that will usually be a fundamental breach, or an intention to abandon the contract, engaging section 136(1)(c) of the Employment Rights Act 1996. The respondent’s wish to retain the claimant in employment, and its belief that another post was suitable, did not answer that contractual question.

3. The Tribunal should have considered the express clause allowing the respondent to change job titles or duties within the grade after consultation. The evidence suggested substantial obstacles to reliance on that clause: the parties had proceeded on the basis that the existing post would end, and the respondent had not purported to exercise the contractual power. However, it was arguable that the clause might mean that the existing contract continued. The EAT therefore did not substitute a finding of dismissal.

4. On age discrimination, the Tribunal assumed that the burden had shifted. On that footing, it had to require the respondent to establish, on the balance of probabilities, that pension-strain cost was not a material influence. Its references to the absence of necessity or a compelling reason to draw an inference imposed too high a standard and misplaced the burden.

5. Both issues were remitted to the same Employment Tribunal, principally for submissions on the evidence already heard. Any further evidence should be limited to contractual issues if required.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the constructive-dismissal and age-discrimination issues.
• Employment Tribunal, London (Central): by written reasons delivered on 1 June 2015, rejected the claimant’s claims.