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Constructive dismissal-preventing problems from escalating

31st August 2012

The Employment Appeals Tribunal has recently given a judgment which addresses a common area of problems for employers.

In the case of Assamoi V Spirit Pub Company (Services) Ltd the Employmant Appeal Tribunal (EAT) considered the effect of an internal grievance on a claim of constructive dismissal. The case involved the head chef at one of the employer's establishments. The employee had experienced problems over a number of matters, and in particular raised a grievance over the way he had been treated by his immediate manager. The manager had suspended the chef for failing to attend a meeting on a date for which the same manager had already approved holiday for the chef at a time. There were in addition to this a number of problems that the chef and a colleague had at the hands of their manager.

A grievance was submitted by the chef about the treatment he had received from his manager. The grievance meeting was chaired by tow senior managers. The grievance raised a n umber of concerns including the allegation that the manager had brought spurious disciplinary actions against him, and he complained about the short notice given for the meeting he had been told to attend despite being on authorised holiday at the time.The upshot of the grievance was that the senior managers accepted the account given by the chef, and stated that no further action would be taken against him, and that the chef could transfer to a different pub under a different manager. However the chef, Mr Assamoi left the compnay and brought a claim of constructive unfair dismissal. He claimed that the actions of the manager had amounted to a fundamental breach of the implied term of trust and confidence and therefore entitled him to resign and claim constructive dismissal. The Employment Tribunal that heard the case noted that a number of the allegations concerned incidents that had happened a number of years before the employee left. The Employment Tribunal ruled that those old incidents could not be relied upon to support a claim of constructive dismissal due to the fact that the employee had continued to attend work since then without complaining about them promptly.

On the subject of the behaviour of the chef's manager and the grievance meeting and outcome, the Employment Tribunal, with which the EAT agreed concluded that although the manager had behaved badly towards the employee, this by itself, did not amount to a breach of the implied term of trust and confidence. The actions of the senior managers, in upholding the grievance and recommending a resolution, had prevented the matters from escalating into a state of affairs that would have justified the chef leaving and claiming that he was constructively dismissed.

The EAT indicated that this case demonstrated that there is a distinction between preventing matters escalating into a breach of contract and trying to cure a breach which had already taken place. The existing case law indicates that once a breach has taken place it cannot be cured. Therefore the effect of the grievance being upheld stopped the individual from being able to say that a full breach of the implied term of trust and confidence had actually happened.

The case suggests that if employers act promptly in dealing with a grievance, and uphold the grievance, and make positive suggestions and recommendations for the resolution of the grievance that the employee concerned will not be able to use the original complaint to support a claim of constructive dismissal. This is an important practical lesson for employers, both to encourage prompt and serious consideration of staff grievances, and that finding a means and proposal to resolve the original problem can reduce the risk of a subsequent constructive dismissal claim.

If you require further help or advice on the issues raised in this article do not hesitate to contact Hallett Employment Law Services.           

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