Classic case of how not to deal with contract change
In Robinson v Tescom Corporation UKEAT/0567/07, the EAT held that an employee who agreed to work under new terms of employment under protest (that is, to “stand and sue”) but subsequently insisted on working under his old terms of employment, had not been unfairly dismissed. Having agreed to work under the new terms, the employee could not subsequently refuse to do so. The employer’s decision to dismiss him in these circumstances was within the band of reasonable responses.
Mr Robinson’s sales area was unilaterally extended to include the whole of the South of England (Kent to Cornwall). Having had his grievance rejected, he wrote to his employer stating that he would work on under the varied terms, but under protest. After his appeal against the outcome of his grievance was rejected, he wrote to his employer and said that he did not accept the new terms and would only work in South East England. At a disciplinary hearing he reiterated his non-acceptance of the new terms and was summarily dismissed for gross misconduct.
The tribunal dismissed Mr Robinson’s unfair dismissal claim, because he initially indicated that he would work under the new terms, although protesting, but then refused to do so, which was gross misconduct, i.e. a failure to follow a reasonable management instruction. The EAT agreed. Mr Robinson’s original letter was a “stand and sue” letter in which he expressly agreed to work under the new terms, albeit under protest. The effect of the letter was that his contract of employment continued, but with a change in sales region, and he could either bring a claim for breach of contract for ongoing losses (if any) or choose to resign and claim constructive dismissal at a later date. It was not open to him to refuse to work under the new terms