Mr D Jeffrey v RJ Blasting (Scotland) Ltd — 2023

Mr Jeffrey had been employed by RJ Blasting (Scotland) Ltd since 18 February 1999 as a shotfirer and driller. The tribunal found that several parts of his remuneration had become contractual entitlements over time, including a flat-rate drilling bonus of £40 per day, a shotfiring bonus of £35 per day, and a travel time allowance that was usually worth around £100 a week. It also found that the claimant’s basic hours were 39 per week and that his pay rose from £8.48 per hour in 2020 to £9.81 from 6 April 2021 and then to £10.10 by January 2023.

The tribunal found that the respondent unilaterally changed the drilling bonus scheme on 8 April 2021, replacing the flat £40 bonus with a graduated scheme based on metres drilled, and removed the travel time allowance at around the same time. It found that these changes were made without consultation or agreement. On 25 April 2022 the respondent also removed the shotfiring bonus scheme, again without notice, consultation or agreement. The tribunal found that these changes significantly reduced the claimant’s overall pay packet and that, after the April 2021 changes, he was around 23% worse off each week in normal pay terms.

The tribunal accepted that the claimant had very difficult personal circumstances in 2021 and 2022 because his daughter was seriously ill with leukaemia, and it accepted that he was absent from work through sickness from 3 February to 16 August 2021. It found that he protested about the pay changes in an email of 22 September 2021 and later in his letter of 12 March 2023, in which he said the terms of employment had been ignored and changed without consultation or agreement and stated that he considered himself constructively dismissed. The tribunal found that the fundamental breaches of contract were a significant part of the reason for resignation, that the delay did not amount to affirmation in the factual context of the case, and that the respondent had not proved a potentially fair reason for dismissal. It therefore held that the claimant was constructively dismissed and that the unfair dismissal claim succeeded. A provisional remedy hearing was listed, but the later hearing date was vacated because the Employment Judge was unavailable and the matter was to be relisted.