Mrs K Wayt (1) Mrs M McPherson (2) v Boots Management Services Ltd AT A FINAL HEARING Heard: Remotely by CVP (nominally at Nottingham) — 2022

Mrs Wayt and Mrs McPherson were long-serving area managers who were told in January 2020, under non-disclosure agreements, that as part of project daffodil they would move into new areas with much larger spans of control. The tribunal found that the respondent had reduced the number of area managers from about 170 to 100, increasing the scale of each remaining area by about 70%, while reducing support. It found there was no consultation, no meaningful assessment of workload by area, and that the claimants were told they could take the new role or resign.

The tribunal found the new role was the same job in terms of grade and expectations, but substantially larger in volume and more demanding in practice. It accepted the claimants’ evidence that they quickly became overwhelmed, and found the changes were imposed in a secretive way that was likely to undermine trust and confidence. It also found the later grievance and appeal process did not address the central point about the scale of the change or the redundancy question, and instead maintained a corporate position that the claimants were not at risk of redundancy because they were mapped into the new structure.

Applying Western Excavating, Mahmud v BCCI, and the authorities on affirmation and causation, the tribunal held there was a repudiatory breach of the implied term of trust and confidence, which the claimants accepted by resigning in July and August 2020. It found their resignations were caused by the imposed change and the respondent’s response to their complaints, and that they had not affirmed the contracts by staying for the period needed to pursue grievances and appeals.

On reason, the tribunal held the operative reason was redundancy because the respondent’s requirements for employees to carry out work of a particular kind, namely area manager work, had diminished within s.139 ERA 1996. It rejected the respondent’s case that the reason was some other substantial reason. It also held that s.138 ERA 1996 did not remove the redundancy payment entitlement, because the new area manager role was a unilateral variation rather than a genuine offer of renewal or re-engagement with a trial period. Remedy was not determined in this judgment and was left to a future hearing if not agreed.