The employee was originally employed by the BBC as an architect in its construction management department. On or around 12 November 2001, a substantial part of the construction department was transferred to the appellant employer, Thornley, under the Transfer of Undertakings (Protection of Employment) Regulations 1982.
Following this transfer, the employer announced its plans to restructure the department. This meant that the employee's role would have changed to that of a managerial role from the hands-on architectural work she had previously done. On or around 1 October 2002, the employee attended a meeting where she indicated that she believed her position was being made redundant. She wrote to the employer stating that as a result of the proposed restructuring, her professional expertise was being dissipated and she was becoming de-skilled as an architect. She also stated that her position was being made redundant. On or around 8 December, she again wrote to her employer raising a grievance in respect of the new role, which she claimed was not comparable with the job specification of the role she had when she was transferred to the employer.
She brought a grievance hearing and following this hearing on 28 January 2003, the employee was informed that her position was not redundant. On 13 February, she resigned on the grounds of constructive dismissal. The employee then made an employment tribunal claim where she claimed constructive dismissal. The tribunal found that the effective cause of the employee's resignation had been the imposition of the new job description, which fundamentally breached the terms of her contract, with the result that the employee was entitled to resign and to be treated as having been dismissed. The tribunal therefore upheld her claim. The employer appealed to the Employment Appeal Tribunal (EAT).
The employer in its appeal contended that the tribunal had misconstrued the employee's contract of employment:
The tribunal's decision was perverse;
The issues for the determination by the EAT were whether the tribunal had erred in arriving at its conclusion with regard to:
the extent of the employee's duties under her contract;
the extent to which those duties were to be changed;
whether the employer had been entitled to change her duties; and
if not, whether the employer's breach of contract was a fundamental breach entitling her to resign.
The EAT dismissed the appeal and held that in the circumstances:
the tribunal was entitled to conclude that the changes to the employee's duties under her contract of employment were a fundamental breach of her contract;
the tribunal did not err in its construction of the employee's contract or in concluding that by the changes proposed to her duties, the employer had intended not to be bound by her contract;
the tribunal's decision that the employee was entitled to resign on the basis of constructive dismissal was correct;
no error could be detected in the way in which the tribunal identified the employee's express duties under her contract of employment;
the tribunal's conclusions on the evidence that there were significant changes to her duties, which would have had the effect of deskilling her as an architect, were unimpeachable; and
the employee's contract, read as a whole, did not permit the employer to change the employee's duties to the extent and nature it had proposed.
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© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
