One of the most common features of dismissal claims is that the claimant has been demoted. This could be the case where, even though the employer has not labelled its decision as a “demotion” and there is no cut in pay, the employee’s job description is altered so drastically that it feels like a demotion.
This was found to be the case in Druse v Newry and Mourne District Citizens Advice Bureau, whereby an employee was awarded over £40,000 after his employer breached his contract of employment on numerous occasions.
Even where an employer has expressly reserved the right to amend an employee’s duties, it must still make sure that it has not acted in a way that breaches its implied contractual duty not to destroy a relationship of trust and confidence.
Druse became a temporary manager when the manager was absent with a serious illness and he was given verbal assurances that the post would become permanent. However, the employer conducted a selection process to fill the post of manager, and Druse was unsuccessful.
He later became a senior advisor, whereby his job description noted that he would not be required to work a probationary period and that he would receive statutory sick pay. When he returned on 25 November after taking sick leave on 2 October, the company gave him a new job description with fewer responsibilities. Druse refused to sign the document, saying that his agreeing to its terms would amount to the acceptance of a demotion. It was also revealed that his salary included a sick pay element that had statutory sick pay but not contractual sick pay, to which Druse claimed he had been entitled.
The tribunal pointed out that, as well as being actual breaches of contract, the failures cumulatively breach the implied terms of trust and confidence.
There have been cases in which an employer’s decision to demote an employee for an honest mistake or a minor indiscretion have been found to be a breach of contract.
Take, for example, when a ruling by the High Court in the Smith v Trafford Housing Trust case held that an employer breached the contract of an employee when he was demoted for suggesting that same-sex marriages in church were “an equality too far” on his Facebook page.
The claimant posted his comment on Facebook in response to a BBC story. An exchange of comments with two work colleagues who had access to his page followed, in which he reiterated his opposition. As a result he was suspended on full pay and found to have been guilty of gross misconduct. Due to his long service he was instead demoted, and thus given a 40 per cent reduction in pay.
The company claimed the postings were “activities which may bring the Trust into disrepute”, and that the employee was “failing to treat fellow employees with dignity and respect”.
Judge Briggs suggested he could not envisage how the claimant’s “moderate expression of his particular views about gay marriage in church, on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.”
The “Acas code of practice on disciplinary and grievance procedures” also notes that the normal sanction in disciplinary cases is either a written warning, a final written warning or a dismissal.
Possibly one of the most important points to keep in mind, however, is that employers must ensure that any disciplinary action is non-discriminatory. This was highlighted by the case of Gault v AVX, whereby the tribunal found that a woman who was demoted immediately on her return from maternity leave was discriminated against.
In fact, research by the Fawcett Society in August 2014 exposed that some one in ten women in low-paid work were demoted upon return from maternity leave.
Furthermore, although there may be a reason for imposing different sanctions on two employees for the same offence – one employee could be on a warning, while the other has a clean record – employers need to stay clear of a difference in treatment when both members of staff are on the same level.
For example, in Hume v Compass Services, the tribunal held that it was sex discrimination for the employer to dismiss a woman for sexual misconduct while her male partner was demoted for the same misconduct.
By Shané Schutte
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