Mr Hugh Marshall v Bathgate Working Men’s Institute — 2018

Mr Hugh Marshall had worked for Bathgate Working Men’s Institute as a hallkeeper for 12 years on a long-established three-week shift pattern. In February 2018 Mr McInally told him the respondent intended to change that pattern to a constant day shift, but there had been no written contract and no consultation about the change. When the claimant raised concern that the proposal would require extra backshifts, Mr McInally told him that if he attended his usual shifts he would be sent home without pay and then asked him to hand in his keys after the claimant asked three times whether he was being dismissed.

The tribunal held that the claimant had not been actually dismissed under section 95(1)(a) of the Employment Rights Act 1996, but had been constructively dismissed under section 95(1)(c). It found that the respondent’s unilateral attempt to change the shift pattern after 10 years, without consultation and without contractual authority, was a repudiatory breach of contract. The demand that the claimant hand back his keys, together with the statement that he would be sent home without pay if he worked his usual shifts, also breached the contract and the implied term of mutual trust and confidence.

Because the respondent did not advance any potentially fair reason for dismissal, the tribunal held that the dismissal was unfair under section 98. On remedy, reinstatement was rejected because the organisation was very small and relations had been soured by the circumstances of the dismissal. The tribunal also found that the claimant had not failed to mitigate his losses by declining the respondent’s later offer to return on an altered shift pattern, because that offer came a month later, did not involve consultation, and was not made in good faith.

In assessing compensation, the tribunal noted that the claimant was 75 at dismissal, had 12 years’ service, and was paid £128 per week gross. It accepted that his losses to 25 October 2018 were £3,708 net and then concluded that it was just and equitable to award 52 weeks’ pay, producing a compensatory award of £5,356. Together with the basic award of £2,304, the total award was £7,660.