A Kemp Mrs Mary Gifford v Represented by: Mr B Nichol Solicitor Shetland Care Attendant Scheme — 2018

Mrs Mary Gifford was employed by the Shetland Care Attendant Scheme as Manager/Co-ordinator from 4 August 2003. At a directors’ meeting on 17 April 2018, the board discussed making her and Mrs Fraser joint managers and proposed changing both job titles to “Joint Co-ordinator” with effect from 1 April 2018. The claimant was unhappy with the proposal and later raised a grievance, saying the change had been proposed without consultation and amounted to a breach of contract.

The tribunal found that, despite the proposal, the claimant’s duties did not in fact change between 17 April 2018 and the start of her sick leave on 30 July 2018. No revised statement of terms, job description, or new contract was issued, and the respondents did not follow through with the proposed division of roles. The tribunal accepted that the initial proposal may have been an anticipatory breach, but held that this was not enough to establish a dismissal where the claimant did not resign and the contract in practice remained in place.

Applying section 95(1)(a) of the Employment Rights Act 1996, the tribunal concluded that there had been no termination of the claimant’s contract by the respondents. The unfair dismissal claim was therefore dismissed. The judgment noted that if the respondents later imposed a new role or sought to implement the change, any future dispute would need to be considered afresh on its own facts, including whether there had been a dismissal and, if so, whether it was fair.