The Employment Appeal Tribunal (EAT) has considered a situation where an employee resigned and claimed that he had been unfairly constructively dismissed, despite the employer upholding his grievance in relation to the treatment he suffered.
The EAT had to consider whether, in certain circumstances, upholding an employee’s grievance prevented them from claiming that the treatment was a breach of trust and confidence.
Assamoi v Spirit Pub Company (Services) Ltd
The Employee worked as a head chef for the Company from 1993 but, from 2005, had a less than smooth employment history with the Employer. He had been involved in a number of disciplinary investigations and had in turn raised a number of grievances.
Matters with the employee came to a head in late 2009. The Employee was due to be on holiday from 27 November to 10 December. As this is a busy time in the pub trade, the manager of the pub only approved the holiday on the understanding that another 2 employees in the kitchen would cover. It transpired that the other staff were not providing adequate cover whilst the head chef was on holiday and the manager invited all 3 to a meeting on 8 December. The employee did not attend the meeting and was suspended. At an investigation meeting, senior managers exonerated the employee as he was on holiday. They reassured him that no further action would be taken.
On his return to work, Mr Assamoi was presented with a written contract covering a new role as kitchen team leader. He was unhappy with the contents but was told that he could sign the terms, ask to be transferred to a bigger pub (and receive more pay) or resign. He resigned on 29 December citing the treatment by his manager and being forced to sign a new contract. He brought a claim for unfair dismissal. His claim was not upheld by the Employment Tribunal, who found that senior managers had intervened to stop problems escalating. The decision was appealed to the EAT.
The EAT held that this was not a situation where the actions of the Company had been likely to destroy or seriously damage the employment relationship. In fact, the Company’s managers had taken his concerns seriously and agreed with him that his manager’s actions were unreasonable.
As actions were taken to prevent the incident escalating as soon as possible, the employee could not rely on the previous actions of his manager to be a fundamental breakdown of trust and confidence.
The EAT had to consider the previous decision of Buckland v Bournemouth University (which was reported in our alert of 5 March 2010), in which the Court of Appeal held that an employer could not ‘cure’ a fundamental breach of trust and confidence. The EAT said that Mr Assamoi’s case could be distinguished as there was no ‘cure’ in this situation – the managers actions had been wrong but not sufficient to justify a resignation and, additionally, other managers had prevented matters escalating.
Finally, the EAT held that he had not been ‘forced’ to sign a new contract, having been provided with the option of a transfer.
The EAT’s decision in this case is useful for employers as it gives them an opportunity to take swift action in relation to any grievances and right any wrongs done to an employee.
Taking action immediately can often prevent matters from escalating into a situation whereby the employee could resign and claim constructive dismissal. This is in contrast to the Buckland v Bournemouth University decision, whereby a fundamental breach of contract cannot be cured after it has taken place.
If you require advice in relation to grievances, constructive dismissal or another employment law issue, please contact Joanne Holborn or Tom Scaife on 01228 552600. Alternatively, email one of the team at HR@baineswilson.co.uk.
3 August 2012