Mrs L Leishman v (25-27 January 2023); Mr Milne - Counsel [Instructed by BTO] (17-21 April 2023)15 Cassiltoun Housing Association — 2023

Mrs L Leishman was employed by Cassiltoun Housing Association as a finance officer on Grade 7. The tribunal found that her duties had evolved over time, including extra responsibilities connected with management accounts, supervision of the finance assistant role, and an increase in hours approved in January 2019. She raised the possibility of being regraded to Grade 8 in discussions with management, but the tribunal found there was no formal request for regrading escalated to the Board at any stage.

The tribunal accepted that the Respondent used benchmarking when grading jobs and that its Board had the final authority over staffing and grading decisions. In May 2020, when the claimant raised Grade 8 with the chief executive, she was told to discuss the matter with her line manager and to gather benchmarking information. In April 2022, the chief executive reviewed Grade 7 and Grade 8 finance role packs from other housing associations, recommended a restructured finance department, and the Board approved a structure with a Grade 8 finance manager, a Grade 7 finance officer and a Grade 5 finance assistant. The claimant was offered the chance to apply for the Grade 8 role with mentoring and support, but she said she would not do so.

The tribunal rejected the claimant’s case that the Respondent’s conduct amounted to a fundamental breach of contract or a breach of the implied term of mutual trust and confidence. It held that there is no general legal right to a pay rise, and that the Respondent’s grading decisions were based on an evidence-based benchmarking process rather than being capricious, arbitrary or inequitable. It also found that the suggestion of redundancy made by GH in December 2021 was not an offer of redundancy, and that the Respondent had been acting on legal advice in holding off a staffing review while GH’s grievance was ongoing.

Applying Western Excavating v Sharp, Malik, Kaur and the other authorities set out in the reasons, the tribunal concluded that there was no fundamental breach of contract and therefore no dismissal within s95(1)(c) ERA 1996. The unfair dismissal claim was dismissed. No remedy was awarded.