The Employment Appeal Tribunal (EAT) has held in Humby v Barts Health NHS Trust that an employment tribunal had been wrong to conclude that there was no breach of an express term of the contract of an NHS employee who was in a band 6 role and was then reassigned to a band 5 position following a restructure.
Following the restructure, which involved reducing the number of band 6 roles, the claimant, who had been unsuccessful in obtaining any of these roles, was reassigned to a band 5 role with effect from 24 February 2020. He disputed the Trust's right to unilaterally change his contract and on 23 March 2020 informed it by email that he had no alternative but to leave. In doing so, he initially stated that he might be willing to work longer than his contractual notice period of six weeks. However, he left within the six-week notice period and subsequently claimed constructive unfair dismissal.
The tribunal dismissed his claim, finding that the Trust had not breached his contract by unilaterally assigning him to a band 5 role. It observed that his band 6 role no longer existed, no other band 6 position was available to him following the restructure, and the band role 5 role was broadly similar to his previous role and fell within the Trust's definition of suitable alternative employment. It also pointed out that the claimant's pay was to be protected for 18 months and, even if there had been a fundamental breach, the claimant had affirmed the contract by being willing to extend his notice period beyond the contractually required six weeks.
On appeal the EAT held that the tribunal had been wrong to conclude that unilateral demotion to band 5 was not a breach of any of the express terms of the claimant's contract. The tribunal had focussed on whether the implied term of trust and confidence had been breached, rather than an express term. In doing so it had failed to acknowledge that the claimant's contract expressly provided that he was employed at band 6 on the corresponding rate of pay. As there was unlikely to be an express term permitting the Trust to demote the claimant and reduce his pay, the Trust had breached his contract.
The EAT also held that the tribunal had been wrong to conclude that the claimant's offer to work slightly more than his six weeks' notice amounted to affirmation of his contract. Although, following the decision in Cockram v Air Products Ltd plc, an employee who gives more notice than is contractually required may well be taken to have affirmed the contract, there was no absolute rule. All the circumstances had to be considered and the tribunal had failed to take into account the relevant circumstances (that the claimant was uncertain about the actual length of his notice period and had concerns about the implications of the Covid-19 lockdown that had recently been announced). The case was remitted to a fresh tribunal for a complete re-hearing.
Take note: Where there is an express term in a contract that an employee is employed on a specific salary band on a corresponding rate of pay it is likely to be a breach of contract if they are reassigned to a role on a lower band with a lower salary. The decision in Humby also confirms that an agreement to work an extended notice period will not necessary be an affirmation of a breach of contract. It will be necessary to take all the factual circumstances into account.
