Posted: June 21st, 2021
There are two employees both of whom are having difficulties with the employer Computer plc (the company). At this initial point, it is noted that both employees have been employed for a period of more than two years and therefore both employees could potentially bring actions for unfair dismissal, or would potentially be eligible for redundancy payment, if either of these situations are deemed to be appropriate. In the case of Norman, he has not actually been dismissed but is facing an increasingly difficult working position whereas Duncan has been dismissed by the company and therefore both situations will need to be dealt with individually and the law applied individually.
Introduction – Norman
Norman is employed on a permanent, full-time contract and originally this contract stated that he would be required to work within a specific geographic region. Attempts were made by the management team to change his contract of employment to include a much broader mobility clause, which the company is now seeking to enforce by requiring Norman to move to any other part of the country, originally on a temporary basis, but potentially on a permanent basis.
Insertion of Mobility Clause
Norman stated that he was unhappy with this new two year contract, but continued to work for the company for a prolonged period of time and therefore it could be argued that he had, by implication, accepted the change of terms. Of particular relevance is the Aparau case. In this case, a mobility clause was inserted into a contract as a change which the employee never accepted but did continue to work for the company for a period of over a year. As the mobility clause has not had an immediate effect on their day-to-day working, the fact that they have continued to work could not be seen as an implied change to the contract, which has been accepted. Based on this, it is argued, in this case, that Norman has not accepted the change to his contract of employment and therefore the mobility clause requiring him to change his location of work to anywhere in the UK would not be applicable to him.
The question therefore moves on to consider whether this would be deemed to be a sufficient change of contract that Norman could refuse to work for the company and resign and argue that he had been constructively dismissed, which would potentially give rise to a claim of unfair dismissal. In order for unfair dismissal to be claimed, the individual must necessarily have actually been dismissed, unless there is some action by the employer which is so substantially in breach of the contract of employment that it is reasonable for the employee to consider themselves dismissed. As noted by Lord Denning, constructive dismissal takes place where the actions of the employer are such that the employee can argue that the breach has gone to the heart of the contract and the employee can no longer be held to be bound by such a contract.
In order for constructive dismissal to be established, it would be necessary for Norman to show that there had been a repudiatory breach of contract and this is done on an objective basis, meaning that the personal situation of Norman in relation to his wife would not be relevant in considering whether or not the employer has behaved in a way that would be deemed to be in repudiatory breach.
Consideration would also need to be given as to whether the actions of the employer were within the range of reasonable responses and given the background to the reason why the vacancy became available in Exeter, there is at least a potential argument that the employer had acted in a reasonable manner by requiring Norman to cover the role of the Exeter sales representative for a period of time. This discussion in relation to the reasonable responses shown by the employer would also be relevant if it came to the situation that Norman was arguing unfair dismissal from his position.
Based on the analysis here, it is argued that Norman were to be moved to Exeter on a potentially permanent basis, it could be deemed reasonable that there has been a breach of the contract. Based on this Norman could argue that he had been constructively dismissed, although it would however be necessary to look in more detail at the situation of the employer to see whether there are other sales representatives who may have been available and how reasonable it was to select Norman.
Finally, therefore, it would be then be possible for Norman to argue that he had been unfairly dismissed and to establish a schedule of losses which would reflect what he had lost from losing his position with the company. It is probable that the company might argue that Norman had been dismissed for some other substantial reason such as the business needing to have an individual placed in Exeter in order to cover the injured sales representative. It would be necessary to look in more detail at the precise situation within the company and how reasonably it had acted when it came to selecting Norman as the individual to cover the region and whether there would have been other individuals who would be more suitable or more amenable to this transfer.
Summary for Norman
Based on previous case law, it is argued that the mobility clause would not have been incorporated into Norman’s contract and therefore any attempt to move him outside of the geographic location of his original contract could potentially be viewed as a repudiatory breach and he could argue that he had been constructively dismissed. This would then allow him potentially to bring an action under unfair dismissal, if he could show that the employer had behaved in an unreasonable manner towards him. This would be both an objective and a subjective test and therefore more information would be required in relation to the situation within the employer company, although on the face of it, Norman has a strong argument to support the claim for unfair dismissal against the company.
As was also the case with Norman, Duncan has been employed by the company for a period of more than two years and therefore has protection from being unfairly dismissed. Duncan has been subject to a disciplinary procedure in relation to his performance and has been more recently dismissed as a result of having alcohol in his blood system after a lunch time trip to the pub. However, a complication has arisen in relation to this latter issue, as it became apparent that he was spiked by another employee and did not knowingly consume alcohol. The key issue here therefore is whether or not Duncan has been fairly dismissed and whether the company has followed the necessary disciplinary procedures in order to effect his dismissal.
The main statutory provisions which are relevant in this regard are contained within the Employment Rights Act 1996 which lays out the rules in terms of determining whether or not the dismissal is fair or not (Section 98). The requirement is put on the employer to show the reason for the dismissal and to show that the reason is fair or potentially fair.
In this case, it is stated that Duncan was dismissed due to alcohol having been found in his blood system, something which is deemed to be gross misconduct in accordance with the contract of employment. On the face of it, therefore, and based on the case of Abernethy, an argument could be presented by the employer that, based on the facts which were known to them at the time of the dismissal, it is reasonable and fair to dismiss Duncan. However, a difficulty emerges with this argument being presented by the company, due to the fact that the company had been made aware of the events which led up to Duncan testing positive for alcohol and the fact that he had been spiked by his colleagues.
Although it is noted that there have been concerns in relation to Duncan’s performance at work and he has been subject to several meetings in relation to this, the facts here indicate that Duncan was in fact dismissed by virtue of his alcohol intake. The position would be different if the company had gone through an informal process of attempting to improve the performance of Duncan and had ultimately dismissed him on the grounds of conduct and performance, but this is not the case and the issues here revolve around whether or not his dismissal for gross misconduct of having been drinking during a lunch break was on balance, fair and reasonable.
Case law has argued that determining whether or not there has been an incidence of gross misconduct which would justify the dismissal of Duncan is a mixture of both fact and law.
Although it is stated that consuming alcohol is deemed to be gross misconduct, when applying this to the facts resented here, there is a strong argument that the reasonable response from an employer when faced with these facts would not be deemed as being gross misconduct, because the individual had not willingly consumed alcohol and therefore it would be potentially unreasonable for the employer to dismiss on this basis. This is particularly relevant when considered alongside the fact that the individual who undertook the spiking is not facing any form of disciplinary action.
A further issue has emerged regarding the way in which the disciplinary procedure was undertaken, as Duncan was told that there would be no point in appealing his dismissal. This raises the question as to whether or not the ACAS code has been followed and failure to follow this code could result in an uplift of compensation for Duncan, if he is found to have been unfairly dismissed.
When a tribunal is faced with the decision as to whether or not an individual has been fairly dismissed, it will look not only at the reasons for dismissal but also if there are multiple reasons. Each individual reason will then be looked at to see whether the employer has acted reasonably, based on all of the information available. It is this latter issue that potentially presents Duncan with the best opportunity to argue that his dismissal was unfair as, by refusing to take into account the fact that he did not willingly consume alcohol and this has now been proven by the confession of his colleagues, it could certainly be argued that to consider him for gross misconduct would be unreasonable. The test in this case was laid out in Burchell which is to look at what the employer reasonably believed at the point of dismissal; therefore, as it had not been made apparent that Duncan had not voluntarily drunk alcohol, there may have been some argument that the employer could have presented that it had acted fairly. Despite this, and with reference to the facts presented here, it is suggested that the dismissal of Duncan for consuming alcohol which he did not voluntarily consume, with no reference made to the individuals who spiked his drink, would not be deemed to be a reasonable reaction and the dismissal would therefore be deemed to be unfair. By refusing to allow an appeal to take place, this would be in breach of the ACAS disciplinary codes and this would potentially result in an uplift of up to 25% on the compensation awarded.
Summary for Duncan
Although Duncan was subject to disciplinary procedures in relation to his performance the issue that has been raised here is in relation to gross misconduct by virtue of alcohol consumption. There is reasonable evidence to suggest that dismissing Duncan because of the consumption of alcohol would not be a reasonable reaction from his employer, based on the evidence that has been provided in relation to the fact that Duncan was in fact spiked. Failure to allow him an appeal was also a potential difficulty for the company and could result in an uplift of the compensation being received.
Abernethy v Mott, Hay & Anderson  ICR 323
Allders International Ltd v Parkins  IRLR 68
Aparau v Iceland Frozen Foods plc  IRLR 119
Bell, A (2006) Employment Law. Sweet & Maxwell p.137
Bournemouth University Higher Education Corporation v Buckland  IRLR 606
British Home Stores Limited v Burchell  IRLR 379.
Burnett, S and Holland, J (2012) Employment Law 2012, Oxford University Press, p.227
Collins, H (2010) Employment law. Oxford University Press p.167
Emir, A (2012) Selwyn’s Law of Employment, Oxford University Press, p.509
Employment Act 2008
Employment Rights Act 1996
Iceland Frozen Foods Ltd v Jones  IRLR 439
Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09
Western Excavating (ECC) Ltd v Sharp  ICR 221
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