Veitch Penny LLP - Exeter | Crediton, Devon

Case

Land Securities Trillium Ltd -v- Thornley
Employment Appeal Tribunal - (20 June 2005)

Issues

(1) Constructive Dismissal
(2) Flexibility clauses
(3) Fundamental Breach of Contract

Facts

Ms Thornley was employed as an architect under a contract containing a clause stating she would perform to the best of her abilities “all the duties of this post and any other post she may subsequently hold and any other duties which may be reasonably required of you and will at all times obey all reasonable instructions given to you”. She was issued with a job description indicating that she would be involved in "full service projects" which would involve seeing a project through from inception to completion. Ms Thornley was then transferred to the new employer following a transfer of undertaking. The new employer proposed changes to her role meaning that her job would become largely managerial with much less hands-on architectural work.

She raised concerns with her employer that her professional expertise was being dissipated and she was becoming de-skilled as an architect. She subsequently raised a grievance regarding her position. She was of the view her position was redundant. After a grievance hearing, she was told that her position was not redundant and Ms Thornley resigned.

She made a claim to the Employment Tribunal complaining of constructive dismissal.

At first instance, the Tribunal upheld her claim finding that the effective cause of her resignation had been the imposition of a new job description which fundamentally breached the terms of her contract. Accordingly, she was entitled to resign and treat herself as being dismissed.

The employer appealed the decision relying upon the flexibility clause, arguing that the change in her role was covered by the clause in her original contract. In view of this clause, it argued that there could be no breach of contract fundamental enough to justify her resignation.

Decision

The appeal would be dismissed. The Employment Appeal Tribunal (EAT) confirmed that the clause could not give the employer carte blanche to change Ms Thornley's job. It stated that the wording "any other post you may hold" only referred to any other post mutually agreed to.

The EAT went on to confirm that the original Tribunal was correct to look past the original job description and examine the actual work Ms Thornley did in practice. It also found the Tribunal was justified in finding that her duties had changed significantly particularly in relation to the removal of hands-on responsibilities to projects.

Comments

This case is a reminder that employers must tread carefully when seeking to alter terms and conditions without an employee's consent. Flexibility clauses which appear in many contracts of employment do not give employers carte blanche to change an employee's duties and any proposed changes must be reasonable.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it