Jackson v The University Hospitals of North Midlands NHS Trust [2023] EAT 102

Appeal by claimant over redundancy pay where she had been made redundant after failing to be offered a post at the same level following a restructure

The claimant had been on a level 6 pay band but following the restructure, implemented to make savings, she was unsuccessful in her application for one remaining position at that grade and was allocated a level 5 position instead. She refused to sign the new terms and requested to be made redundant. A grievance was rejected, on the ground that the new role was a suitable alternative so the claimant resigned, but on appeal it was decided she was redundant and that if she withdrew her resignation she would serve 8 weeks notice. There was then a dispute over when the notice started and so proceedings ensued over the redundancy payment. The ET found she was not entitled to contractual redundancy payment offered as she had resigned prior to the notices expiring.

In this judgment Judge Barry Clarke, provides a useful review of the Hogg dismissal doctrine, where an employee cannot affirm a breach of contract because the old contract had been terminated. He accepts the claimant's submissions that the ET's analysis of the Hogg doctrine was flawed and their judgment was not-Meek compliant as the ET had failed do a proper before-and-after comparison of the different posts and whether the new terms were sufficiently different to amount to a withdrawal of one contract and its replacement by another. He therefore, after careful consideration, remits the matter to a new tribunal to reconsider the facts, after refusing to substitute his own decision that it was a Hogg dismissal


Published: 14/08/2023 11:35

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