An employee who resigned after her employer tried to “map” her into a new role, rather than make her redundant, was constructively dismissed.
The facts
Ms Kuldo was employed by Argos Limited. She was told that her role was at risk of redundancy, that she was to be pooled with another employee and they would both be considered for a newly created role. However, while she was on holiday, Ms Kuldo received a text from her line manager, telling her that the other employee in the pool had resigned, and that Ms Kuldo would therefore be mapped into the new role.
In deciding which roles would be mapped, Argos applied a 70:30 rule – an old role could be mapped to a new role if there was a difference of not more than 30% between the two roles. Ms Kuldo did not agree that the new role mapped to her old role. She thought the new role had a lower status, fewer senior responsibilities, and a change in job content. She did not believe that it was 70% similar to her existing role. Her concerns were treated as a grievance and, after a grievance hearing, she was told that Argos stood by its original position that she would be mapped into the new role. Her internal appeal was unsuccessful. She resigned, and claimed in the employment tribunal that she had been unfairly constructively dismissed.
The tribunal upheld her claim. It found that there was no individual consultation with Ms Kuldo; once the other employee had resigned, Argos had considered that there was no need to consider any consultation. This was a breach of trust and confidence as well as a breach of its own policy, and Ms Kuldo was therefore entitled to resign.
The tribunal also found that there was a lack of understanding of how to apply the 70:30 metric, no full assessment of the application of the metric in Ms Kuldo’s case, and a failure to conduct a proper assessment for the purpose of Ms Kuldo’s appeal. These were also breaches of trust and confidence which were each repudiatory and entitled Ms Kuldo to resign. The tribunal concluded that the dismissal was unfair.
Argos appealed to the EAT, which partially upheld the appeal. The EAT held that the tribunal had been entitled to find that Ms Kuldo had been dismissed. The three breaches of trust and confidence which it had identified were each sufficiently serious to be repudiatory. Mrs Kuldo was therefore entitled to resign in response to them and she had done so. However the tribunal had wrongly assumed that the dismissal was necessarily unfair because Ms Kuldo had been constructively dismissed. The case was remitted to the tribunal to consider this point.
What does this mean for employers?
Employers who are “mapping” roles must carefully and thoroughly assess the differences between the roles, and follow their own policies and guidance in doing so. They should also take the time to consult with employees, giving them information about the changes in role and taking concerns raised by employees into account in decision making. It is important to follow a fair procedure, even when the employer’s intention is that the employee remains in employment.
