When the Agency Breaches the Contract: What Expert Witnesses Can Learn from Al-Naimi v Buildmaster

Commentary by Professor Irfan Jeeva, Consultant Ophthalmologist and Expert Witness

Expert witnesses are usually urged to read CPR 35, FPR 25 and CrimPR 19. Far fewer are encouraged to look closely at employment and contract cases that deal with unilateral variation, repudiatory breach, and the right of the innocent party to “stand and sue”.

The Employment Tribunal reconsideration judgment in Ghada Al-Naimi v Buildmaster Construction Services Ltd (Case No 2300236/2023, reasons varied 3 January 2024) is one such case.   Although it arises from a small business dispute about fluctuating wages, the legal principles are directly relevant to medical experts who contract with medico-legal agencies, employment agencies, and intermediaries.

In this commentary I set out what the Tribunal decided, the contractual principles it restated, and how these can be applied when an agency breaches its obligations to an expert witness.

1. The Case in Outline

The claimant, Ms Al-Naimi, worked for Buildmaster Construction Services Ltd. Her basic salary was £2,400 per month, but the respondent began paying significantly reduced amounts, at times as low as £1,050, without clear agreement and without written confirmation of any change. 

She brought a claim for unlawful deduction from wages. The Tribunal originally upheld that claim. The respondent then applied for reconsideration, arguing that:

• there had been a unilateral variation of contract in October 2021

• this variation amounted to a dismissal and re-engagement on new terms

• the reduced pay reflected a new contract at a lower salary

On reconsideration, the Tribunal confirmed the original outcome and clarified the legal reasoning, drawing heavily on Hogg v Dover College, Alcan Extrusions v Yates, Rigby v Ferodo Ltd, Smith v Trafford Housing Trust and the recent EAT decision in Jackson v University Hospitals of North Midlands NHS Trust.

The respondent’s attempt to recast its own unilateral conduct as a lawful dismissal and re-engagement was rejected.

2. The Options When an Employer Unilaterally Changes Terms

The Tribunal quoted with approval the summary in Jackson of the classic options available when an employer imposes changes without agreement.  These include:

1. Resign and claim constructive unfair dismissal, if the breach is repudiatory and qualifying service is met.

2. Affirm the contract and agree to work under the new terms.

3. Refuse to work under the new terms and force the employer to choose between dismissal and backing down.

4. “Stand and sue” by continuing to work under protest, bringing proceedings for breach of contract and any shortfall in pay, as in Rigby v Ferodo.

5. Accept that there is a new contract on different terms, but assert dismissal from the old contract as the basis for an unfair dismissal claim (the so-called Hogg dismissal).

These are presented in the judgment not as abstract theory, but as practical routes for an employee faced with unilateral change.

For expert witnesses working with agencies, the structure is immediately recognisable. When an agency changes payment terms, deadlines, cancellation rules, or case allocation unilaterally, the expert is in a very similar position.

3. Unilateral Variation and When a Contract Is Treated as Withdrawn

The Tribunal revisited Alcan Extrusions v Yates, restating that there are situations where an employer’s conduct is so substantial that it amounts to withdrawing the original contract altogether.

The key passage, quoted in the reasons, emphasises that:

• it is only where the employer’s conduct objectively amounts to saying “your former contract has gone” that there is a dismissal

• very substantial departures from the existing contract may, in some cases, amount to such a withdrawal

• whether this threshold is crossed is a matter of fact and degree

The Tribunal then carefully asks whether the reduction in pay in Ms Al-Naimi’s case, taken with the surrounding circumstances, amounted to withdrawing the old contract. It concluded that it did not.

There had been a fluctuating reduction in salary, but:

• her role did not change

• there was no communication that the old contract was at an end

• there was no clear new contract on defined terms

• the respondent’s arguments were inconsistent and unsupported by documentation

Crucially, the Tribunal held that the claimant had effectively chosen to “stand and sue” for the shortfall, and that the original contract remained in place.

4. Intention Is Irrelevant: Consequences Matter

A particularly important point for experts and agencies appears in the Tribunal’s summary of Hogg and related authorities. The judgment confirms that the employer’s intention is not the deciding factor.

The question is not whether the employer meant to dismiss, but what effect their unilateral action has, viewed objectively.

Translated into the expert witness context, an agency cannot escape the legal consequences of its conduct by claiming after the event that it did not intend to breach the agreement. Courts and tribunals look at what was done, not the internal narrative of the breaching party.

5. Why This Matters for Medical Expert Witnesses and Agencies

Although Al-Naimi is an employment case, the principles it restates are highly relevant to contractual relationships between experts and agencies. Many medical experts now work as independent contractors with:

• medico-legal report agencies

• employment agencies acting for solicitors or insurers

• third-party intermediaries who collect a percentage of fees

These organisations often issue “standard terms” which are presented as non-negotiable. However, as in Al-Naimi, problems arise when the agency itself departs from those terms.

Examples include:

• unilateral changes to payment timescales or fee levels

• attempts to introduce additional administrative requirements without agreement

• refusal to pay agreed cancellation fees

• imposing extra work outside the agreed scope for the same fee

The key lessons from Al-Naimi and the authorities it cites can be summarised for experts as follows.

6. Key Lessons for Expert Witness Contracts

A. A unilateral breach by the agency does not automatically bind you

If an agency unilaterally reduces your fee, delays payment beyond the agreed terms, or refuses to honour contractual cancellation conditions, this may amount to a breach of contract. You are not obliged to accept this as the new normal.

You may, in principle, choose to:

• treat the breach as repudiatory and terminate the relationship, or

• continue to work under protest and “stand and sue” for the shortfall or unpaid sums, as in Rigby v Ferodo and as recognised in Al-Naimi.

B. An agency cannot easily create a “new contract” to suit its own purposes

In Al-Naimi, the respondent attempted to argue that by reducing wages it had effectively dismissed and re-engaged the claimant on new terms. The Tribunal was clear that there was no evidence of any such agreed new contract.

For expert witnesses, this supports a simple proposition: an agency cannot simply announce that “from now on” different terms apply and then rely on those terms against you, particularly where:

• there is no clear written communication setting out the supposed new contract

• your work and responsibilities have not materially changed

• you have not expressly agreed to the new terms

C. Intention to help the business does not excuse breach

The Tribunal acknowledged that Buildmaster believed it needed to reduce wages to keep the business afloat.  That did not change the legal analysis. The same applies to agencies who argue that insurers or solicitors are squeezing them and that experts must bear some of the financial strain.

Commercial pressure does not legitimise unilateral breach of contract.

D. Documentation matters

The Tribunal placed significant weight on the absence of clear communication, written notice, or contemporaneous evidence supporting the respondent’s version of events.

For experts, this underlines the importance of:

• insisting on written terms at the outset

• documenting any variations explicitly

• confirming, in writing, when you do not agree to a unilateral change

This strengthens your position if you later need to challenge non-payment or resist attempts to enforce unfair terms.

7. Can a Breaching Agency Still Enforce the Contract?

A fair and accurate way to express the position, based on Al-Naimi and the authorities it summarises, is as follows:

• Where an agency fundamentally departs from agreed terms, its ability to rely on the contract against the expert may be seriously weakened.

• If the breach is substantial enough to amount to a withdrawal of the original contract, the expert may be entitled to treat the old contract as at an end and decline to be bound by its restrictive terms.

• Even where the contract technically continues, an agency that has breached key obligations may struggle to persuade a court or tribunal that it should be allowed to enforce, for example, onerous exclusivity clauses or penalty-style provisions.

The doctrine is not that “any breach nullifies the contract”. Rather, it is that serious unilateral breach or variation can undermine the breaching party’s ability to rely on the very agreement it has failed to honour.

For expert witnesses, this is a powerful and protective principle.

8. Practical Takeaways for Expert Witnesses and Solicitors

For experts:

• Be clear about your terms and ensure they are in writing.

• When an agency departs from those terms, respond promptly, in writing, and record that you do not accept unilateral variation.

• Consider carefully whether to terminate the relationship or “stand and sue” for outstanding sums, depending on the scale and impact of the breach.

For solicitors instructing experts:

• Be aware that agencies who mistreat experts may weaken their own contractual position.

• Direct instruction of experts, on clear and fair terms, can reduce the risk of disputes about payment, scope, and loyalty.

• When agencies are involved, ensure that the arrangements support, rather than undermine, the independence and sustainability of expert practice.

Conclusion

Ghada Al-Naimi v Buildmaster is not a medico-legal case. Yet it encapsulates principles that sit at the heart of expert witness practice in an increasingly commercialised environment.

An agency that breaches its own contract cannot assume that it will still be able to rely on that contract to control, restrict, or penalise the expert. The law gives the innocent party options, including the right to continue under protest and claim what they are properly owed.

For expert witnesses, understanding these principles is part of modern professional literacy. For solicitors, recognising them can help in choosing stable, reliable arrangements that respect both contractual fairness and the overriding duty of the expert to the court.

If you wish, Professor Jeeva, we can now move to the next step and build a Gamma.app carousel from this blog for LinkedIn, with a focus on teaching other experts while reinforcing your authority as the lead ophthalmology expert witness in this space.