The claimant was employed by the respondent as a Care Assistant but resigned her employment on 30 April 2014 by letter, in which she set out lengthy grievances as to how she had been treated. Whilst the claimant claimed unfair constructive dismissal, the dispute in the case centred around the classification of the claimant and whether she had been promoted to a higher grade position with better pay. 

In effect, the claimant was working at two separate grades and being paid two different hourly rates, depending on the work she did. The claimant invited the tribunal to infer a variation in her contractual terms. It was clear that any ‘variation’ to the claimant’s contract was informally done and there was no evidence produced of an amended contractual document. 

However, the tribunal held that the contract ‘had been varied accordingly by custom and practice’ based largely on the working arrangements and hours the claimant was asked to worked.

PRACTICAL LESSONS

The respondent failed in its argument that simply because the claimant had been asked to occasionally work at a different grade at a higher rate of payment, this did not amount to a variation of her contract. Each variation of contract case will depend on its facts, but employers should strive to clarify the position with the relevant employee as to the classification of their position. However, tribunals increasingly look at the ‘reality’ of a worker’s position and will always be wary of whether a contractual document genuinely reflects the true employer-employee relationship.