Bored out of work
News that an employee in France is suing his employer for
boring him out of his job may cause initial amusement but how
seriously should an employer treat complaints from staff that
changes to their duties mean they no longer have anything
(or anything interesting) to do?
Mr Desnard has accused his employer
of ‘putting him in a cupboard’ alleging
he wasn’t given work to do and was
deliberately ignored and side-lined by
his employer who wanted to get rid of
him but also wanted to avoid having to
make a redundancy payment following a
restructure. He claims to have suffered
with severe ill health as a result of
being ‘bored out’ and says he was then
dismissed as a result of that ill health
absence.
While we don’t suggest you lie awake
night worrying about the whether
‘bore out’ might be affecting your
staff (insomnia being one of the many
conditions Mr Desnard is seeking to
attribute to his employer) it is important
to note that unilaterally varying an
employee’s duties could lead to a claim
of constructive unfair dismissal.
Constructive dismissal occurs when
an employer acts in a way that
fundamentally breaches the contract of
employment; the employee accepts that
conduct as repudiating the contract and
resigns promptly in response. A one off
act by an employer can be a fundamental
breach or there can be a series of events,
the final one of which is the ‘last straw’.
Changing an employee’s contractual
duties, whether by removing some or
requiring them to perform new ones, is
likely to constitute a repudiatory breach
but you will need to consider what the
employee’s duties under the contract
were, the extent to which the duties
were changed, whether the employer
was entitled, by virtue of the contract, to
change those duties and, if not, whether
the changes were sufficiently material to
constitute a repudiatory breach.
Having a flexibility clause in an
employment contract will be relevant to
the scope of duties that may be required
of an employee, but such a clause does
not give an employer carte blanche to
require the employee to perform any type
of duty they see fit.
The extent to which any new duties are
outside the terms of the original contract
will always be a question of fact and
degree.
In Coleman v S & W Baldwin the
employer was in repudiatory breach
when it took away an employee’s core
duty and left him only with duties of a
“humdrum character”.
In Land Securities Trillium Ltd replacing
the hands-on duties of an architect with
duties of a managerial nature constituted
a repudiatory breach. As a matter of fact,
the tribunal found that such a change
would have de-skilled the employee as
she would have been out of touch with
developments in her field.
In McBride v Falkirk Football and Athletic
Club the employee was constructively
dismissed when a unilateral change
in duties was imposed on him without
prior consultation and in a high-handed
manner. The duty at stake (picking his
team players) was a matter of substance
and went to the heart of the employment
contract.
Consultation and reasonableness are
always the key factors to have in mind in
these circumstances and, as always, it
is infinitely better (and cheaper) to seek
legal advice before taking any action that
might lead to Tribunal proceedings.
B
y Sam Dickinson
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