On 31 August 2021 the COVID-19 right-to-work concession allowing employers to carry out...
Constructive dismissal and incorporated terms
Hamilton v Fife Council
An incorporated collectively agreed term was not apt for incorporation into an individual employment contract so as to enable an employee to rely on a breach of it as giving rise to a constructive dismissal claim.
Ms Hamilton was an RE teacher. She was informed that the RE department had a surplus of staff and that as she had the shortest service in that department, she was to be moved to another school under the terms of the applicable collective agreement (LNCT 06). The school then advertised a full-time position in the RE department. Relations between Ms Hamilton and the school deteriorated and she resigned. While still employed she lodged various tribunal claims and after her resignation she brought a further claim of constructive unfair dismissal – the one with which this digest is concerned. A tribunal dismissed her constructive dismissal claim and she appealed.
Her appeal was dismissed.
Clause 2 of LNCT 06 stated that ‘unless there are teachers who have been designated surplus, any permanent post will normally be advertised’. Ms Hamilton argued that by advertising a full-time position in the RE department after having told her she would be moved, the school had breached clause 2 in such a way as to entitle her to treat her contract as having been repudiated and so to resign.
Not so held the EAT. Whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether such terms are apt for incorporation. Terms that are truly collective in nature (e.g. many redundancy procedures) cannot generate enforceable individual rights. Clause 2’s vagueness and lack of specification as to when it could be invoked by employees demonstrated that it was not intended to confer individual rights, the term was only a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0006_20_2403.html
This is a case that does not set any specific precedent other than to make it clear that each term will be considered on its own facts and so there is no general rule that terms in a collective agreement will always be incorporated into an individual contract.