EMPLOYMENT 

Varying Terms and Conditions — It’s a Funny Old Game

The recent Northern Ireland Tribunal case of Anne McLarnin v Abbey Insurance Brokers Ltd [NIIT 1168/15] in which Millar McCall Wylie acted for the Claimant, provided a stark warning to employers on the implications of seeking to unilaterally impose changes to an employee’s contract of Employment.

In this case the tribunal held that the attempt of Abbey Insurance to move the Claimant to an alternative branch constituted an express breach of contract and constructive dismissal as it would have resulted in the Claimant’s demotion.

Similar issues of breach of contract and demotion were considered by the High Court in England this month in the slightly higher profile case of Gibbs v Leeds United Football Club Ltd [2016] EWHC 960.

The Claimant Nigel Gibbs was Assistant Manager at Leeds United Football Club. He had worked under Manager Brian McDermott, who was sacked by Leeds Chairman Massimo Cellino in May 2014. The Claimant was subsequently offered but declined the position of Head Coach. He confirmed however that be was prepared to continue in his role as Assistant Manager.

Mr David Hockaday was thereafter appointed as the new Head Coach of the Club. The High Court noted that the ‘relationship between Mr Hockaday and the Claimant was not a happy one’. The Claimant was excluded from first team duties which included being part of the club’s pre season tour of Italy, pre-season friendlies and training. When the Claimant requested the Club’s new training kit for that season he was issued with the training kit from the previous season. In addition when the Claimant approached Mr Cellino to request that he be provided with duties befitting of his status as Assistant Manager reference was made to cleaning work to be carried out at the club training ground.

On 23rd July 2014 the Claimant received an email, stating;

‘Further to our earlier conversation I am instructed to write to advise you as follows: (i) with immediate effect you are to have no contact and/or involvement with the LUFC First Team and your role at the Club should be confined to working with the Under 21s , Under 18s and other non-first team players...’

Finding in favour of the Claimant the High Court found that the Club’s refusal to allow him to work with the first team amounted to a fundamental breach of his contract of employment. Interestingly the High Court noted the fact that the Claimant had expressed that he was prepared to leave the club if suitable terms were offered made the breach of his contract no less fundamental or repudiatory. He remained willing to carry out the duties under his contract at all times.

Employers must tread carefully when seeking to vary the duties and/or the role an employee undertakes. In particular Employers should consider whether they have a specific or general contractual right to vary an employee’s terms and most importantly they should consult with the affected employee and make efforts to ascertain whether he/she will consent to the change proposed. It is notable that in both the above cases the Respondent did not consult with the Claimants in any meaningful way.

As ever we recommend that employers take specific legal advice before seeking to vary contracts of employment for any of their staff.

 

 

 

 

Image courtesy of Jeroen Van Oostrom at FreeDigitalPhotos.net 

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