Mr Robinson was employed as a territorial manager for Tescom, a manufacturer of pressure regulators and valves. In 2006, Tescom formulated a restructuring plan that involved a expanding the territory covered by Robinson to include the whole of the south of England.
In July 2006, Robinson raised a grievance about the changes stating he wished to remain in his existing position. At the conclusion of the grievance Robinson said that he would take on the extended sales territory, but would review the situation over a 12 month period. In September 2006, he said that he would work under the new job description, but under protest, and that he was treating the change as a breach of contract.
He subsequently refused to work to the new terms and Tescom dismissed him summarily for failure to follow a reasonable management instruction. Robinson brought claims for unfair dismissal and breach of contract.
The employment tribunal dismissed the claims. As Robinson had agreed to work under the terms of the varied job description, his subsequent refusal to do so was “gross insubordination”. Dismissal for failure to follow a reasonable management instruction fell within the band of reasonable responses and the dismissal was fair.
On appeal, the Employment Appeal Tribunal (EAT) held that when Tescom sought to unilaterally change Robinson’s contract, he did not acquiesce in the new terms, but sought to work under protest, reserving the right to claim damages for breach of contract and unfair dismissal. However, he did in fact work to the new job description.
Having taken the position that he would agree to work under the new terms under protest and reserving his rights, he was required to in fact work under those new terms.
The employer’s subsequent letter instructing him to do so was a lawful instruction. The employment tribunal had been correct to hold that there was no unfair dismissal when Tescom terminated the employment in response to Robinson’s refusal to work under the new terms.
This decision confirms that an employee who is faced with an attempt by the employer to unilaterally vary the contract of employment has four options:
To agree to the variation
To resign and claim constructive dismissal
To refuse to work under the new terms (thus forcing the employer to either permit the employee to continue working under the old terms or to dismiss
To ‘stand and sue’ by working under protest and seeking damages (either for breach of contract, or for unfair dismissal). Having chosen one of these options, however, the employee is obliged to stick to it.
Robinson had confused the option of “standing and suing” and refusing to work under the new terms and, as a result, left himself without a remedy.
Jonathan Exten-Wright, partner, DLA Piper