Recent case confirms pub chef was not constructively dismissed
As an operator you will undoubtedly have had managers who treat employees in an off-hand way or who undermine their role – making it very difficult and uncomfortable for them to do their job. Such treatment can result in a breach of the implied contractual term of mutual trust and confidence. This entitles the employee to resign and bring a claim for constructive unfair dismissal. However, the case of Assamoi v Spirit Pub Company provides a possible escape route should an employee come to you with a genuine grievance about the way they have been treated by a manager.
The Facts
Mr Assamoi had worked for Spirit for about 15 years and ended up employed as head chef in one of its pubs. His relationship with management during that time was not always harmonious. He arranged to take 2 weeks leave in November/December 2009. One day during his leave the kitchen was understaffed and service was very slow. Mr Assamoi’s manager called the 3 chefs to an out of hours meeting to discuss this and then suspended all 3 when they failed to turn up to the meeting. The day when the kitchen was understaffed and the subsequent meeting both happened during Mr Assamoi’s period of agreed leave. When the matter was investigated by other managers they realised this was the case. They confirmed that no action would be taken against Mr Assamoi and offered to move him to another of its pubs. Mr Assamoi insisted on an apology from his manager which was not forthcoming. He decided to refuse the transfer and resign instead, bringing a claim for constructive dismissal on the basis that the implied duty of mutual trust and confidence had been breached by his employer.
Was there a breach of contract by Spirit?
In order to bring a successful claim for constructive dismissal an employee needs to show either that an express term of his contract has been breached or, as in this case, that the implied term of mutual trust and confidence has been breached. To do this he must show that the breach was so serious that it entitled him to resign.
The Employment Tribunal decided that the manager’s actions – suspending Mr Assamoi, convening a meeting whilst he was on holiday and refusing to apologise – were all actions which were likely to damage the relationship of trust and confidence. However, the managers who investigated the matter did so in a very thorough and sympathetic way; they believed his account, they said no further action would be taken and offered him a transfer. In so doing these managers prevented a breach of the duty of trust and confidence from occurring.
Appeal
Mr Assamoi then appealed to the Employment Appeal Tribunal . He relied on the case of Buckland v Bournemouth University which in essence said that once the duty of trust and confidence has been breached the employer can do nothing to repair it as it is too late to rectify the situation. Mr Assamoi said that the actions of the investigating managers came too late as the breach had already occurred. The EAT disagreed and said that the actions of the investigating managers in this case had come in time to prevent a breach from happening.
Practical Issues
It is often difficult to say clearly at what point the duty of trust and confidence has been breached. The breach is usually the result of a string of acts with a final one being the last straw.
For you as an operator and employer, the Assamoi case shows that you may have the chance to rectify things before it’s too late and therefore avoid a successful claim. If an employee raises a grievance, which after investigation appears to be genuine, then by apologising or offering a solution you may, in some situations, be able to avoid a breach of contract and therefore a possible constructive dismissal claim. It could also be that if you fail to take any action to remedy the problem, that failure to act could be the final straw which causes the breach. To avoid a claim action needs to be taken at the right time, before it’s too late and the breach has been established.
