A charity manager was unfairly dismissed after she said she was ‘demoted’ when her role and responsibilities were shared with a colleague, a tribunal has found.
The Aberdeen Employment Tribunal (ET) ruled that Shetland Care Attendant Scheme (SCAS) – formerly known as Crossroads – unfairly dismissed Mary Gifford following a change in her job role, and later made unfair deductions from her wages.
The judge said the sequence of events leading to Gifford’s resignation from the Scottish charity amounted to a contractual “breach of the implied term as to trust and confidence”.
Gifford, who was employed as a part-time manager/coordinator, had worked 20 hours per week for SCAS, which provides respite care, since 2003. In her role, Gifford had responsibility over an administrator, Kate Fraser.
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Fraser had just been awarded an SVQ4 managerial qualification and, in a meeting on 17 April 2018 with Gifford and the charity’s chairman, Mr Henderson, she sought a pay rise in line with this new qualification. Gifford had no objection to Fraser receiving this.
But the tribunal heard that as well as a pay increase, Henderson proposed that Fraser be given management responsibilities and that she and Gifford be named joint coordinators – meaning Gifford would have to share her responsibilities and duties with Fraser and would no longer be her line manager. The decision was made to apply the change retrospectively from 1 April.
Gifford told the tribunal she had not been given any forewarning that a change to her job role would be proposed, that she had not been consulted in principle or in detail on the proposal, and therefore she was not prepared to address the issue in the initial meeting.
Gifford raised a formal grievance on 29 May 2018. Henderson rejected the grievance on 7 June without following SCAS’s internal grievance procedure, stating: “It’s not for a member of staff to dictate how a board should conduct its business… I am disappointed you feel so aggrieved.”
Gifford appealed, but this was rejected by the board in a letter sent on 8 July. Gifford took two weeks’ annual leave and then commenced a period of sick leave on 30 July, having been certified unfit to work because of work stress.
She commenced the period of leave on full pay and was not informed that it was either discretionary or provided on a goodwill basis. Employees had previously been granted extended sick leave and full pay, the tribunal heard.
As a registered nurse, Gifford would also occasionally work as a bank nurse covering vacant shifts for another employer and continued to do so after 30 July, following advice that it would be good for her mental health. In December, SCAS became concerned that Gifford was unfit to work for the organisation but able to work for other parties and sought occupational health advice from Shetland Health Board, which provided the majority of SCAS’s funding.
An appointment was made on 10 January 2019 to carry out an occupational health assessment, but Gifford was not informed and did not attend. This resulted in SCAS and Shetland Health Board reducing her pay to statutory sick pay (SSP) from 1 December 2018. Gifford received a letter describing the previous five months’ sick pay as a “generous goodwill gesture”.
Gifford’s net pay for November 2018 was £1,221 and was paid at the end of that month, but with SSP her net pay for December 2018 dropped to £499.20 and was received 10 days late. On 21 January 2019, she resigned with one month’s notice and alleged constructive dismissal because of the decision to reduce her pay.
In his decision, Judge Kemp said Gifford was “moderate, reserved and convincing in her evidence” and had clearly explained why she had resigned her employment.
He agreed that the reduction in pay was “the final straw” in material changes to her employment terms and conditions, which began with the change in job role.
He said: “The sequence of events entitle the claimant to resign on the basis that there had been a final straw which led to a breach of the implied term as to trust and confidence,” and concluded that on both procedural and substantive grounds, the dismissal was “clearly unfair".
Paul Holcroft, associate director of Croner, said the case was a clear example of how procedural shortcomings can lead to a successful claim of constructive dismissal. “Failure to follow established policies when dealing with areas that will have a substantial impact on an employee’s role can amount to a fundamental breach of the employment contract,” he said.
“The situation outlined here also reaffirms the importance of consulting with employees before making any changes to their terms and conditions.”