How to cure a potential constructive dismissal

13 August 2012 | David Widdowson

An employee who was vindicated by his employer following an unfair suspension could not claim constructive dismissal.

Employment contracts contain express and implied terms. One such implied term is the employer’s duty not to act in a manner which is likely to destroy, or seriously damage, the relationship of mutual trust and confidence.

Spirit Pub had found Mr Assamoi, their kitchen help, difficult to manage. When the kitchen was left understaffed on a busy day, the pub manager Mr Cooper demanded all staff attend an out-of-hours meeting 2 days later. Mr Assamoi was on pre-arranged holiday on the understaffed day and the day of the meeting but was suspended for his non-attendance at the meeting. On his return, he attended an investigatory meeting where it was made clear that his absence had been sanctioned on both days, no further action was taken and the reference to his suspension was erased from his record. He demanded an apology from Mr Cooper which was not forthcoming and he was also offered a transfer to a new pub if he signed a less attractive contract. He claimed constructive dismissal.

The Employment Tribunal found that Mr Cooper’s actions were “likely” to breach the relationship but had not destroyed it due to the actions at the investigatory meeting. The Employment Appeal Tribunal (“EAT”) agreed.

Commentary

If an employer is able to act reasonably, investigate any complaints quickly and rectify any mistakes then it may be able to avoid a successful constructive dismissal claim.

A constructive dismissal claim based on the grounds of “breakdown of trust and confidence” usually takes place after a series of events culminating in the “final straw”. It is much more difficult for an employer to rescue the situation at this point but it can try to prevent the relationship from reaching that stage. This case highlights the importance of acting quickly where complaints and grievances are found to be justified.

If the employer cannot prevent the breach of contract, it could offer to correct the breach by, for example, offering the employee a new role in the organisation. This puts the employee in a difficult position. In the 2011 case of Debique v Ministry of Defence, Ms Debique won her discrimination claim against her employer but was not awarded any compensatory loss of earnings as she was found to have unreasonably refused to accept an offer to transfer to a new position.

Resources

Assamoi v Spirit Pub Company (Services) Ltd

Debique v Ministry of Defence

For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 (0)20 3051 5711.

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The author

David Widdowson
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