Mrs K Kerr v 15 Renfrewshire Council — 2018

Mrs Kerr was employed by Renfrewshire Council from 26 March 2012 and worked as a Housing Assistant on a permanent compressed-hours pattern of 17.5 hours over Mondays and Tuesdays. The dispute arose from a meeting on 29 August 2017 attended by Sandra Fraser and Maureen Beacom, where the respondent wanted her to work on Wednesday mornings. The tribunal found that the respondent had genuine concerns about Wednesday-morning cover, but not serious or communicated productivity concerns sufficient to justify the way the matter was handled.

The tribunal found that the respondent made it clear at the 29 August meeting that it wanted Mrs Kerr to change her working hours, and that she left with the clear impression that changes would be made unless she could show the respondent was not contractually entitled to do so. However, it also found that no change was actually imposed at that meeting. The respondent then sought clarification from HR, and on 23 October 2017 Mr Simpson confirmed in clear terms that Mrs Kerr remained on her permanent 17.5 hours over two days and that any variation would require consultation and agreement.

On liability, the tribunal rejected the express-term case because the respondent had not gone beyond a desire and intention to alter working arrangements if the contract permitted it, and because any anticipatory breach had in any event been unequivocally retracted before Mrs Kerr resigned on 16 November 2017. The tribunal accepted that the meeting was conducted in a clumsy and ill-considered way: Mrs Kerr was not given advance notice, was not offered accompaniment, and was put in a position where she believed management wanted to change her contract. Those matters caused some damage to trust and confidence, but the cumulative effect did not reach the level of a breach of the implied term of trust and confidence.

Because there was no extant fundamental breach of contract at the date of resignation, the tribunal held that Mrs Kerr had not been constructively dismissed. In the absence of a dismissal, the unfair dismissal claim was dismissed. No remedy was awarded.