There have been numerous EL cases relating to whether an employer can vary the terms and conditions of employment for their employees. Now, there’s another recent decision on the matter in the case of Humby v Barts Health NHS Trust 2024 – and it’s one in which the Hogg principle plays a crucial role in the outcome…
What is the Hogg Principle?
Under the Hogg principle – arising from the decision in the case of Hogg v Dover College 1990, an employee has the ability to claim compensation for unfair or wrongful dismissal when their employer imposes unilateral changes to the terms and conditions of their employment. This is provided that the changes are radically different from the existing terms and conditions, as this would mean the previous contract is effectively terminated. The Hogg principle is reinforced by 95a if the Employment Rights Act 1996, which confirms that an employee is dismissed if their contract is terminated by their employer.
Humby v Barts Health NHS Trust 2024 – The Background
My Humby was employed on a band 6 post as a Clinical Coding Quality Lead, and – as part of a restructuring programme, was required by his employer to compete alongside others on band 6 posts for the roles that were to remain. Mr Humby applied but was unsuccessful in securing the position. As a result, he was given a band 5 role which came with a significant £5k drop in salary, and loss of managerial responsibilities. Due to this, Mr Humby resigned, and took the matter to the Employment Tribunal - who his claims at a preliminary hearing. Thus, he took things further with the Employment Appeal Tribunal (EAT).
Humby v Barts Health NHS Trust 2024 – The Decision
The EAT upheld the appeal as they felt that the Employment Tribunal had made an error in their assessment. They argued the unilateral variation in Mr Humby’s express contract terms from a band 6 post to band 5 was a fundamental and substantial breach of contract, and – by applying the Hogg principle, amounted to actual dismissal of Mr Humby by the NHS Trust. As such, they remitted the case back for a fresh hearing with a fresh tribunal.
The decision follows a prior one made by the EAT in the case of Jackson v University Hospitals of North Midlands Trust 2023, where – again due to restructuring, a specialist haematology nurse was slotted from a grade 6 role to a lower grade 5 position after being unsuccessful in applying for the role. The EAT emphasised the need to compare the two roles to determine whether the new terms were sufficiently different to amount to the withdrawal of one contract for another – which would classify as termination. When an employee is terminated, they cannot affirm it by working under a new contract as Section 95a of the Employment Rights Act 1996 states that if a contract is terminated by an employer, the employee is treated as dismissed.
Expert HR Support and Guidance
Please note, constructive dismissals are not relevant to the Hogg principle as – with the latter, the employer dismissed the employee by terminating their contract through the imposition of new terms. This contrasts with constructive dismissals where the employee decides to resign due to a repudiatory breach of contract by the employer. There may also be redundancy issues that need to be addressed.
The moral of this case is that employers must be extremely careful when looking to unilaterally vary an employee’s existing contractual terms as it could amount to a dismissal. As such, you should follow a meaningful consultation process with the employee to try to get them to agree to the changes – even if the changes are permissible based on the wording of the contract. Thus, employers should take appropriate HR guidance when seeking to present new terms.
Those facing business restructuring are advised to contact the HR Helpline Service for FREE on 01455 852 028 – where a team of experts are happy to advise and serve your needs.
