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A right to make change did not mean it was not substantial or a detriment

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Lewis v Dow Silicones,  Mr Lewis worked at the Combined Heat and Power Plant in Barry in South Wales as one of ten operations technicians.  He started in June 1999.  Initially he was employed by Npower. The Respondent, Dow Silicones UK Ltd, bought the plant in 2013 but the staff were outsourced to Engie Renewals Ltd, who became Mr Lewis’s employer. In 2017 Dow decided to “insource” the staff; this involved them transferring from Engie to Dow under the Transfer of Undertakings (Protection of Employment).

It was Dow’s intention to make changes to the working arrangements at the plant.  Mr Lewis was not happy with these changes and he resigned on 5 March 2018 claiming unfair dismissal.  His case was that Dow were acting in fundamental breach of his contract of employment and that his resignation gave rise to a constructive dismissal and/or that he could rely on regulation 4(9) of TUPE.

The Employment Tribunal in Cardiff decided that there had been no dismissal on either basis and that his claim therefore failed.  He appealed on the grounds that that decision was perverse.

The EAT held, in relation to the claim of fundamental breach of contract, that the ET had made findings that were open to it on the evidence, and rejected this ground of appeal. However, the EAT held that the ET’s findings in relation to regulation 4(9) were based on false reasoning and its decision was therefore perverse. Accordingly, the EAT substituted a decision that the Claimant was entitled to treat his contract of employment as terminated and was to be treated as having been dismissed by the Respondent; his complaint of unfair dismissal based on regulation 4(9) would be remitted to the same ET to determine.

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