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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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Contract, variation and breach Terms implied by the courts Temporary work at a different location ¶1174 The EAT has recently held that in an exceptional case the tribunal was entitled to hold that it was justifiable for the employer to require the employee to work temporarily at a different location notwithstanding that the employee’s express contractual terms only provided for her working at her workplace. In this case, L, a teacher, was on sick leave after claiming she had been bullied and harassed by her head teacher. An independent investigator hired by her employer to investigate her 33 complaints dismissed all but one of them. L did not accept the report’s conclusions, but accepted the report’s proposed plan of the use of a mediator to assist her return. Her employer however considered that this plan would not work until L had accepted the report’s conclusions and as a result deferred her return until the matter had been resolved and requested that in the interim she should do a similar job at a different location. The EAT held that the tribunal was entitled to find that despite the fact there was no express term to support this temporary change in location, a term requiring this could be implied given that the requirement to work was justified and the temporary alternative location was suitable and the employee would suffer no detriment with regard to her benefits or status in doing so. Luke v Stoke on Trent City Council [2007] IRLR 305, EAT Incorporated collective agreement terms Variation ¶1282 The Court of Appeal has considered a national agreement which set out car use allowances for authorised employees in local government. The employer, a city council implemented the scheme and then subsequently varied the agreement unilaterally. The Court held that on a true analysis of the contractual position, the Council was entitled to decide unilaterally to change the existing practice in the operation of the car use allowance scheme. However the Court held that this power to vary unilaterally the terms of the employment contracts as to car user allowance was subject to an implied term that reasonable notice of the variation be given or proper transitional arrangements be made. The council was therefore not entitled to give effect to that decision by implementing the change without transitional provisions which would protect the rights of those employees who were affected by the changes in the scheme. Wetherill and ors v Birmingham City Council [2007] EWCA Civ 599 Constructive dismissal 1. Breach of implied term of trust and confidence ¶1716, ¶¶1245+, ¶6730 An employer will breach his implied duty of trust and confidence if he, without reasonable and proper cause, conducts himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence which should exist between him and the employee (see ¶1245). The EAT has recently given guidance on the questions that need to be addressed when determining constructive dismissal cases where the employee has resigned due to an alleged breach of trust and confidence. These questions are as follows:
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