Agreement under protest

Case 3: The facts

Mr Robinson was employed as territorial manager, covering mainly the south east of England. After reorganisation, he was informed that his designated sales area would double in size.

Robinson wrote a letter stating, “I will work under the terms of the varied job description, but under protest … I do not accept the terms and am treating the change as a breach of contract and dismissal from the original contract. I retain the right to seek damages for breach of contract and/or a declaration from the courts that my employer must abide by the original terms of my contract.”

Robinson did not in fact work to the new terms and was dismissed for failing to follow a reasonable management instruction. Robinson brought an unfair dismissal claim, which the employment tribunal rejected because he had initially agreed in his letter to work the varied terms, albeit under protest. Robinson appealed.

The ruling

The EAT upheld the tribunal’s decision. Where an employee agrees under protest to work under varied contract terms, a subsequent refusal to observe those terms may amount to misconduct justifying dismissal.

Robinson could have resigned and claimed constructive dismissal when the new terms were imposed, but he chose not do so.