Jackson v The University Hospitals of North Midlands NHS Trust

The Employment Appeal Tribunal allowed the claimant's appeal on the narrow legal question whether the Employment Tribunal erred in law in concluding there had been no "Hogg" dismissal when the respondent imposed a new Band 5 contract effective 3 December 2018. The EAT held that the ET had misapplied the Hogg v Dover College principle by conflating the tests for a Hogg dismissal (an employer terminating the particular contract and replacing it by a new contract) and constructive dismissal, and by relying on irrelevant factors (such as intention and the claimant's bringing of a grievance) instead of carrying out a proper before-and-after comparison.

The ET had found that the respondent repudiated the claimant's contract, that the dismissal was by reason of redundancy and unfair, and that the claimant was entitled to statutory redundancy pay, but it rejected entitlement to a contractually enhanced Agenda for Change redundancy payment because it concluded the claimant had left before expiry of notice. The EAT decided the ET's analysis on whether a Hogg dismissal had occurred was legally flawed and its reasoning was not Meek-compliant, and it remitted the limited issue of whether there was a Hogg dismissal on 3 December 2018 to a differently constituted Employment Tribunal for a fresh factual determination.

Background and parties: The claimant, a Band 6 senior haematology research nurse employed by the respondent Trust, was informed by letter dated 13 November 2018 that she would be slotted into a Band 5 post with effect from 3 December 2018. The claimant refused to sign the new terms; the ET found the new role was imposed and the respondent's conduct amounted to a repudiatory breach.

Nature of the claim and relief sought: The claimant brought claims including unfair dismissal and breach of contract, seeking statutory redundancy and an AfC contractual enhancement (one month's pay per year of service) subject to the jurisdictional cap. The specific appellate issue was whether there had been a "Hogg dismissal" on 3 December 2018 such that the claimant remained employed when notice expired and therefore retained entitlement to the contractual redundancy payment under Agenda for Change (noting section 16.20 of AfC which forfeits redundancy pay if an employee leaves before expiry of notice).

Procedural posture: After a four-day ET hearing (Employment Judge Wedderspoon), the ET upheld unfair dismissal and awarded statutory redundancy but rejected contractual redundancy on the basis the claimant had left before the expiry of notice. The claimant appealed to the Employment Appeal Tribunal.

Issues framed:

• Whether the imposition of the Band 5 contract on 3 December 2018 amounted to a Hogg dismissal (i.e., termination of the particular pre-existing contract and replacement by a new one) within limb (a) of section 95(1) Employment Rights Act 1996; and
• Whether the ET properly applied Hogg and carried out the requisite before-and-after comparison to determine whether the variation amounted to termination rather than a mere variation or affirmation.

Court's reasoning: The EAT reviewed Hogg v Dover College and subsequent authority, explaining that the central question is whether the particular contract in force was terminated by the employer and replaced by a new contract, which is a question of fact and degree requiring a proper before-and-after comparison (pay, hours, status, allowances). The EAT concluded the ET had erred by:

• misstating the relevant test (confusing Hogg dismissal with constructive dismissal analysis and affirmation);
• relying on irrelevant factors such as the employer's intention and the claimant having raised a grievance; and

Disposition: The EAT allowed the appeal on that limited point and remitted to a differently constituted Employment Tribunal the single issue whether there was a Hogg dismissal on 3 December 2018, leaving intact the ET's findings that the dismissal was unfair and by reason of redundancy and that the claimant was entitled to statutory redundancy pay. The parties were directed to consider case management and the potential need for limited documentary evidence and possible Acas conciliation. The EAT noted that, if a Hogg dismissal is found, the claimant would be entitled to the AfC enhanced redundancy amount subject to the jurisdictional cap and to consideration of section 123(7) Employment Rights Act 1996.

Appeal allowed. The EAT held that the Employment Tribunal erred in law in its analysis of whether the unilateral imposition of the Band 5 role on 3 December 2018 amounted to a Hogg dismissal. The ET had conflated the tests for a Hogg dismissal and for constructive dismissal, relied on irrelevant considerations (such as intention and the claimant having raised a grievance) and failed to carry out a Meek-compliant before-and-after comparison of terms. The EAT remitted the single issue of whether there was a Hogg dismissal on 3 December 2018 to a differently constituted Employment Tribunal for determination; it did not reopen the ET's findings that the dismissal was unfair and by reason of redundancy or the award of statutory redundancy pay.

Appeal from an Employment Tribunal hearing of four days before Employment Judge Wedderspoon, which upheld unfair dismissal and statutory redundancy but rejected contractual redundancy pay. The matter was appealed to the Employment Appeal Tribunal, Neutral Citation [2023] EAT 102 (Case No EA-2022-000134-LA).