Clare Jackson v The University Hospitals of North Midlands NHS Trust

A unilateral purported variation may amount to an express dismissal under section 95(1)(a) of the Employment Rights Act 1996 where, in reality, it withdraws the employee’s existing contract and replaces it with another. This is commonly described as a Hogg dismissal.

The decisive question is whether the old contract was withdrawn, not whether the employer intended to dismiss, whether the employee could perform the new role, or whether the employee remained in employment and pursued a grievance. The issue is one of fact and degree. The tribunal must make an adequate before-and-after comparison of the terms, including pay, hours, status and benefits where relevant.

The claimant, a band 6 NHS research nurse, was unsuccessful in obtaining a restructured band 6 post. The respondent imposed a band 5 role on new terms from 3 December 2018. The claimant objected, pursued grievances and later resigned.

The Employment Tribunal upheld her unfair-dismissal and statutory-redundancy claims, but rejected her claim for contractual enhanced redundancy pay. It found that she had not been dismissed when the band 5 role was imposed and had left before the expiry of notice.

On appeal, the sole issue was whether the Tribunal had erred in deciding that the imposition of the new role was not a Hogg dismissal. If it was, the parties agreed that the claimant would be entitled to the enhanced payment, subject to the Tribunal’s jurisdictional limit.

1. Appeal allowed. The Employment Tribunal erred in its analysis of whether the claimant’s original contract had been terminated and replaced when the respondent imposed the band 5 role.

2. A Hogg dismissal falls within section 95(1)(a) of the Employment Rights Act 1996. It arises where a unilateral purported variation is, in substance, the withdrawal of the old contract and its replacement by a new one. The statutory question is whether the particular contract under which the employee was employed was terminated by the employer.

3. The Tribunal wrongly conflated that question with constructive dismissal. It was irrelevant that the respondent did not intend to dismiss the claimant, that she could perform the new role, or that she remained in employment while raising a grievance. If the old contract had ended, it could not be affirmed.

4. The Tribunal also gave inadequate reasons. It had to compare the former and new positions to determine whether the changes amounted to a withdrawal and replacement of the contract. Relevant matters potentially included overtime, unsocial-hours payments, working hours, pay, status and benefits. Its findings did not adequately address that comparison.

5. The EAT declined to substitute a finding that there was a Hogg dismissal. Although the Tribunal’s findings pointed towards a new contract being imposed, the necessary factual evaluation remained open and more than one outcome was possible.

6. The enhanced-redundancy issue was remitted to a differently constituted Employment Tribunal. The remission did not reopen the findings that the claimant had been unfairly dismissed by reason of redundancy. The parties were also directed to have regard to section 123(7) of the Employment Rights Act 1996.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the contractual enhanced-redundancy issue to a differently constituted Employment Tribunal: [2023] EAT 102.
• Employment Tribunal: Upheld unfair dismissal and statutory redundancy pay, but rejected the contractual enhanced-redundancy claim.