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Dismissal and re-engagement

August 2, 2023

After an illustrious career, former Scotland captain Stuart Hogg has recently announced his immediate retirement from rugby. On a coincidental note, a recent EAT decision has provided further clarification on what amounts to a “Hogg dismissal”. I know what you’re thinking – did the EAT really honour a Scotland great with a new term to describe immediate retirement after a lengthy career? What a nice tribute!

Well, they didn’t. In fact, the former two time Six Nations Player of the Championship and the term “Hogg dismissal” are linked by name only. But we had to mention it…

Anyway, back to the reason you’re here – employment law and Hogg dismissals. The recent case of Jackson v University Hospitals of North Midlands NHS Trust saw the employee, a research nurse with the NHS, raise a constructive dismissal claim against her employer. As part of this she contended that she had been subject to a Hogg dismissal.

Receiving its name from the case of Hogg v Dover College, at its core a Hogg dismissal comes about where an employee’s contract of employment has been terminated by way of a unilateral imposition of new terms from the employer which, in reality, terminates one contract and creates another.

Ms Jackson, who had been employed under band 6 contract, was assigned to a more junior position, at band 5, in the aftermath of a proposed restructure by her employer. A dispute arose between the employee and her employer as she refused to sign the new terms and conditions.  This unfolded over several months which saw her raise a grievance, resign and retract her resignation. The employee contended that she should be made redundant and paid enhanced redundancy pay. Her employer eventually accepted this and served her notice; however, she submitted a further resignation during her notice period causing her employer to declare her ineligible for the contractual enhanced redundancy payment.

Taking the matter to the employment tribunal, her claims for unfair dismissal and statutory redundancy pay were upheld. Her claim for contractual redundancy pay was not as the tribunal was not satisfied that the change to her contract was radical enough to result in a Hogg dismissal. Additionally, the tribunal noted that she maintained the skills to carry out the role at a more junior level and that her employer had not intended on dismissing her.

Not to be deterred, Ms Jackson appealed the tribunal’s decision. The basis for the appeal was that the tribunal should not have considered how radical the change was but rather if it had the effect of terminating her previous contract and replacing it with a new one.

The EAT criticised the test applied by the tribunal, noting that it was not relevant whether the employer had intended on dismissing the employee through the change nor did it matter whether she had the necessary skills to execute the role. In reality, the tribunal should have carried out a before and after comparison of the role to establish whether there the difference in terms created a substantial enough difference to withdraw the previous contract and implement a replacement. The issue was then remitted back to the tribunal to determine afresh using the correct legal test.

The case reinforces that employers should look to exercise caution in varying contracts. Not every situation will lead to a Hogg dismissal, nevertheless, employers may wish to take advice on any proposed variation to avoid the possibility of one arising. Above all, it is a clear illustration that a Hogg dismissal occurs based on a comparison of the contractual changes as opposed to the behaviour or intention of the parties.  A useful reminder that constructive dismissal is not the only risk when imposing new terms on an employee without obtaining the employee’s agreement.

If you have any questions regarding potential variation to contracts of employment or any other area of Employment law, please get in touch with Blackadders Employment Team, working across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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