Abide with me

Robinson v Tescom Corporation

If an employer unilaterally changes a contract, employees have a number of options – they can agree to it; resign and claim constructive dismissal; refuse the terms; or work under protest and seek damages. In Robinson v Tescom Corporation, the Employment Appeal Tribunal (EAT) said that if employees decide to protest, then they have to abide by the new terms or risk dismissal for not following their employer’s instructions.

Basic facts

Mr Robinson had worked as a Territory Manager from 1995 mainly in south east England (known as area 6), selling components manufactured by his employer. In 2006 he was asked to take over more of the systems work which involved travelling all over England. When he refused, the company offered to restrict his patch to two areas in the south (areas 3 and 6).

He lodged a grievance in July 2006 which was unsuccessful although the company agreed to review the situation in 12 months and to have three monthly review meetings with him.

On 25 September, shortly before he was due to start the new job in October 2006, he wrote to his manager saying that he would work as per the terms of the varied job description, but under protest as he considered the variation to be a breach of contract.

He then unsuccessfully appealed the grievance decision, after which the company told him the new contract would be implemented on 16 October. Mr Robinson then wrote on 25 October saying that he would only work in area 6. After a disciplinary hearing in early November, he was dismissed with effect from 24 November.

Tribunal decision

The tribunal said that the change to Mr Robinson’s contract was a unilateral variation that he was entitled to treat as a breach of contract. He could therefore have resigned and claimed constructive dismissal.

However, by failing to do that and by writing his letter of 25 September he had instead “limited any claim that he may have for breach of contract to a claim for damages for that breach. In this situation it is unreasonable to suggest the Claimant can continue in his job but only perform the tasks under his original contract, when the employer requires him to undertake other tasks. The contract that the Claimant was affirming by his letter of 25 September was the contract as amended by the Respondent.”

As Mr Robinson then failed to co-operate with his employer’s reasonable instruction to follow the terms of his amended contract, the dismissal was fair.

EAT decision

And the EAT agreed. It said that by his letter of 25 September, Mr Robinson had agreed to work under the terms of the new contract, albeit under protest. If things had not worked out, he could then have resigned and made a claim for damages.

Given Mr Robinson’s letter of 25 September, the company’s letter of 16 October asking him to start work under the new terms was lawful. He had agreed to work to the new job description and “having so agreed, could be compelled by his employer to do so. He did not however keep to his side of the bargain, but insisted on working to the terms of the original contract and ignored the new job description he had agreed to work to.”