In the recent case of Assamoi v Spirit Pub Company, the Employment Appeal Tribunal considered whether the employer’s actions to remedy the employee’s complaint had prevented him from being able to claim constructive dismissal.
Mr Assamoi worked as a kitchen manager. He had worked for Spirit for 7 years, but had worked at several different pubs during that time. Over the years he had had some disciplinary action taken against him and had raised some grievances which were not upheld.
In 2009 there was an issue where Mr Assamoi was suspended and threatened with disciplinary action (together with two other members of staff) for failing to attend work. This was unjustified as the Claimant had already notified his manager that he would not be in work on that particular day, and had arranged for the two other staff members to cover. This came out in the investigation and no action was taken against him.
The Claimant was not happy, and two general managers from other pubs were involved in trying to resolve the situation. They accepted that the Claimant’s manager had not handled the situation well and agreed with the Claimant’s version of events. They gave the Claimant three choices: return to work (which involved signing new terms and conditions), ask for a transfer to another site, or resign. Although the Claimant argued that the new terms and conditions reduced his hours, the Tribunal did not find that this was correct.
The Claimant resigned, arguing that he was not willing to give the company “another chance to redeem its appalling treatment of underpaid hardworking staff.” He claimed constructive dismissal.
In order to claim constructive dismissal, a Claimant needs to show that the Respondent has committed a fundamental breach of contract. Usually an employee will argue that the employer has behaved in such a way as to breach the duty of mutual trust and confidence.
In this case the Tribunal accepted that the manager’s behaviour was “likely to damage” the relationship of trust and confidence. However, crucially, they found that the intervention of the two general managers had prevented the matter from being a fundamental breach and therefore he had not been constructively dismissed.
Mr Assamoi appealed to the Employment Appeal Tribunal (EAT). He referred to the case of Bournemouth University v Buckland. In that case it was established that once a fundamental breach of contract has taken place, it cannot be remedied by anything the employer does later.
The EAT considered this but found that there was a distinction to be drawn between the principle in Buckland and the circumstances of Mr Assamoi’s case. Here, the actions of the manager were not sufficient as to have amounted to a fundamental breach on their own, and therefore the employer had remedied the situation and had prevented a breach taking place. If the two general managers had not agreed with Mr Assamoi then it may have been that a fundamental breach would have occurred, but their actions limited the damage and prevented him from having a claim for constructive dismissal.
The lesson to be learned from this case is that if an employer finds that something has not been handled well, it is always worth trying to remedy the situation – if there hasn’t been a fundamental breach, then it isn’t too late to try and prevent matters escalating. It is always best to encourage employees to raise issues either informally or through the grievance procedure, so that if something has gone wrong, you have an opportunity to resolve problems at an early stage.
If you have a dispute with an employee or need advice on a grievance, then we can help. Where appropriate, we can give expert guidance on what any potential claims may be worth, and on how best to approach a potential Compromise Agreement, including preparing the agreement itself. Please call us on 01243 836840 for a no obligation chat or email us at [email protected].