Preventing constructive dismissal
A recent decision of the Employment Appeal Tribunal (EAT) illustrates how an employer can take steps to prevent a breach of trust and confidence that may otherwise give rise to a claim for constructive dismissal. Employment Principal Lorna Townsend reports.
In this case, the employee worked as a chef in a pub. He was suspended from work by his manager and invited to an investigatory meeting on the grounds that he had not turned up for work when he had been asked to do so. At the investigatory meeting, it was established that the employee was on authorised holiday at the relevant time. As a result, it was decided that no further action should be taken.
The employee raised a grievance about the way he had been treated by his manager. He then attended two return to work meetings at which various options for his return were discussed, but he subsequently resigned as a result of his treatment by the manager and the company. His grievance was not concluded, on the basis that he had refused to return to work.
The employee’s claim for constructive unfair dismissal was not upheld. The tribunal agreed that the manager’s actions were inappropriate and over-reactive, and concluded that they were likely to damage the relationship of trust and confidence with the claimant. However, the tribunal was satisfied that the respondent had prevented the manager’s conduct from constituting a breach of the implied term of trust and confidence entitling him to resign and regarding himself as constructively dismissed. In its investigation of the disciplinary matter, the respondent had accepted the claimant’s version of events and stated that no further action would be taken. He was also offered the option of transferring to another pub to work with a different manager.
The EAT has now dismissed the claimant’s appeal against the tribunal’s decision. It has emphasised the distinction between a fundamental breach of contract that an apology by the employer cannot cure, and there being action by an employer that can prevent a breach of contract taking place. In this case, the “fair minded” way in which the investigatory meeting proceeded meant that it prevented the matter escalating into a state of affairs that would have justified the claimant leaving and claiming he was constructively dismissed.
Comment This case provides a good example of how, in following a fair procedure, the employer has avoided the escalation of a dispute into circumstances giving rise to a fundamental breach of contract.
As the EAT points out in its judgment, the whole object of a grievance procedure and a disciplinary procedure is that the employee has the opportunity to articulate his concerns about the behaviour of management, and to defend himself against allegations that in some way he is unfit to remain in the employment of the employer.
If an employer acts fairly and reasonably in following such procedures, it will often be able to prevent a fundamental breach of contract occurring, meaning that the employee will have no grounds for claiming constructive unfair dismissal.
A copy of the EAT judgment is available here