It is not easy to win a claim of constructive dismissal, but the employment appeal tribunal (EAT) has just said in Land Securities Trillium Ltd v Thornley (2005, IRLR 765) that the employer could not rely on a flexible clause in her contract to completely change her job description. Ms Thornley's union, BECTU, instructed Thompsons to act on her behalf.

 

What were the basic facts?

Ms Thornley had worked as an architect for the BBC for 11 years when her department was transferred to Land Securities Trillium in November 2001 under the Transfer of Undertakings Regulations.

Although she had some management responsibilities following a promotion in 1992, her main duties at the BBC were as an architect working on "full service" projects. In other words, complex design projects for which she was responsible from start to finish.

Subsequent to the transfer, her new employer outlined proposals to reduce the number of in-house architects and to increase the number of external consultants, particularly on large projects. Ms Thornley complained in October 2002 that she felt her position had become redundant, because she would be reduced to overseeing the external consultants.

Her employers then produced a new job specification, changing her job title to "senior architect" and setting out the main duties and responsibilities. Ms Thornley felt that her job had been downgraded to that of a manager and that she was being deskilled as an architect.

At the end of November, she was told that she had not been selected for redundancy. She lodged a grievance, but her employer decided that the changes to her job did not amount to a redundancy situation. She resigned on 13 January 2003, claiming unfair dismissal.

 

What did the tribunal decide?

The tribunal agreed with Ms Thornley. It found that she resigned because the new job description fundamentally breached the main term of her contract, which was to lead on large and complex projects in which she would have a handson role from start to finish.

It also said that the flexibility clause (requiring her to perform any duties that might be "reasonably required" of her) in her contract did not mean that her employers could change the content of her work to such an extent that she was effectively deskilled as an architect.

It said that the reason for her dismissal was therefore redundancy, the new post was not a suitable alternative job, and that her dismissal was unfair.

 

What did the EAT decide?

The EAT said that the tribunal was right to decide that the employers were in fundamental breach of Ms Thornley's contract. They had imposed a new job description which had significantly changed her role. Her duties as a "hands-on" architect were substantially reduced to a mainly managerial one.

The tribunal was also entitled, when trying to decide her contractual duties, to look not only at how her duties were described in her original job description but also how they operated in practice.

It pointed out that job descriptions are not "prescriptive documents. They frequently fail to represent, or represent either accurately or fully, the actual duties in fact undertaken by an employee in his or her post; and the duties are often described in vague terms so that, when interpreting them, a tribunal is required to put some flesh on the bones, as it were, in order to understand what exactly the employee's duties comprised."

The tribunal was entitled to find that Ms Thornley's employers had not just changed the emphasis of her role, but rather the content of her duties. These changes did not fall within the scope of the flexibility clause in Ms Thornley's contract.