Ms Constantine had been a veterinary surgeon since 2017. Initially, she had worked every day with two half days rest, but this increased to four full days and a weekend every three weeks. Moreover, she was required to seek permission to be absent on those days she was not required to attend work. In November 2020, Ms Constantine began a sickness absence, claiming burnout, and was certified as being unfit to work from 1 December 2020 to 4 January 2021 due to anxiety. In May 2021, a ‘fit for work’ statement recommended one day a week, which was subsequently increased in June 2021 to one and a half days a week, with at least one day off between workdays.
Following a meeting on 22 June 2022, the respondent agreed to look into issuing a new contract for a three-and-a-half-day week with two in six weekends. A proposed contract with a covering letter dated 24 August 2022 was sent to the claimant with a £23,267 gross salary per annum, which was not in alignment with the agreed basis that it should be based, pro rata, on her previous full-time salary of £44,000 p.a. The claimant contended that the revised salary calculations were severely flawed and effectively constituted a 22.4% pay cut based on a new notional denominator of 260 working days in the form of a ‘take it or leave it’ offer.
Further, a series of unauthorised wage deductions had been made from May 2021 to 31 July 2023, and Ms Constantine ultimately resigned in 2023, lodging a formal grievance on 14 March 2023, specifically complaining about the basis of the calculations of her pro-rata pay from May 2021, asserting a breach of the Part-Time Worker (PTW) Regulations 2000 and unlawful deduction from wages.
The Tribunal ruled in favour of Ms Constantine, finding an unlawful deduction from wages, constructive unfair dismissal, and unfavourable treatment arising in consequence of disability, and she was awarded a total of £19,017. Ms Constantine was deemed to have been a disabled person from December 2021 due to chronic fatigue, as the respondent should have known, and the act of proposing a new part-time contract in August 2022 at a disproportionately low salary constituted unfavourable treatment arising from the claimant’s need to reduce her hours due to disability (s.15 Equality Act 2010).
The claim for constructive unfair dismissal was upheld because the respondent had committed a fundamental breach of contract by withholding admitted back pay and making its payment conditional on the claimant agreeing to the proposed future salary. Finally, the Tribunal found that an unauthorised deduction from wages had occurred, applying the Apportionment Act 1870 to set the lawful deduction rate at 1/365th of the annual salary for days the claimant was rostered to work but was absent.
When seeking to reduce an employee's hours, any resulting contract must be calculated correctly on a pro-rata basis in accordance with the PTWs. Employers must prove that any proposed pay revisions are not only fair, but also "necessary and appropriate" to achieve a legitimate business aim. Above all, employers must never deliberately withhold payment in an effort to coerce an employee into agreeing to new contractual terms. Such an act risks breaching the implied term of mutual trust and confidence, creating grounds for constructive unfair dismissal.
