The relationship between an employer and employee will frequently evolve and change over a period of time. Sometimes it occurs through natural change such as promotion at other times it will be due to the employee requesting a change. Then just as frequently the employer will want to implement change. If they do what is the risk?

The case in question, Robinson v. Tescom Corporation, turned out somewhat unfortunately for the employee.

Key Facts

Robinson was employed as a territorial manager, the company proposed changes which involved him and he made it clear that he wanted to keep his existing working arrangements. He was told that a new arrangement would be put in place that involve him in more travel. He raised a grievance. It was confirmed that the changes would be implemented but the position would be reviewed over a 12 month period. Robinson agreed to work under the arrangement but under protest, he sent a letter to that effect stating that he regarded the changes as a breach of contract and dismissal from the original contract.

Robinson did not work to the new terms and he was instructed to attend a disciplinary hearing. He made it clear that he did not accept the changes and as a result he was dismissed for gross misconduct in not following a reasonable management instruction. He appealed and the appeal was dismissed.

Outcome

The matter was considered by the Employment Tribunal which held that the decision to dismiss was fair. The employee had decided to work under protest. That was effectively his new agreement; the whole position was subject to review over the 12 month period. The decision to refuse to work then meant that the employee had committed a breach of the company’s rules and so left himself open to a potential gross misconduct issue because he had refused a legitimate management instruction

View Point

This seems to be a harsh outcome when the employee was trying to follow the ACAS guidance in these cases unfortunately by refusing to follow instructions he left himself open to a fair dismissal.
The position from the employee position is that there are a number of options when faced with a variation of contract

•  Agree to the variation (in which case the employee should get a new contract signed quickly)
•  Resign and claim constructive dismissal (provided the employer has genuine sound business reasons and they have followed a fair procedure then this may be a risky route)
• Refuse to work under the new terms (if the employer has followed a proper process and not unilaterally changed the terms without consultation this would result in the employer terminating employment and this may be potentially fair. An employer would face a problem if they acquiesced in the refusal and allowed the employee to work the old conditions)
• Stand and sue by working under the new terms under protest. (The employee would sue for damages for a breach of contract or possible unfair dismissal - this may be a risky approach by the employee and no damages may be awarded)
  

It remains far better for an employer to ensure that they follow a fair process, consult with employees and try to address concerns raised.

For further information please phone 01455 850000 or contact jstringer@qdosconsulting.com