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Prevention is better than cure

 16th Aug 2012

If an employer upholds an employee’s grievance, does this prevent the employee subsequently making a claim in the Employment Tribunal?

The Employment Appeal Tribunal (EAT) recently had to consider this question in the case of Assamoi v Spirit Pub Company (Services) Ltd.  Mr Assamo resigned and claimed that he had been unfairly constructively dismissed, despite the employer upholding his grievance relating to the treatment he suffered. 

Mr Assamoi worked as a head chef for the company from 1993 but, from 2005, had a less than smooth employment history with his employer. He had been involved in a number of disciplinary investigations and had in turn raised a number of grievances.

Matters came to a head in late 2009. Mr Assamoi wanted to book holiday from 27 November to 10 December. Being a busy time of year, the manager only approved the holiday on the understanding that another 2 employees in the kitchen would cover. When these 2 other didn’t provide adequate cover whilst the head chef was on holiday, the manager invited all 3 to a meeting on 8 December. Mr Assamoi (who was on holiday) did not attend and was suspended. At an investigation meeting, senior managers accepted the reason for his absence and assured that no further action would be taken.

On his return to work, Mr Assamoi was given a written contract covering a new role as kitchen team leader. He was unhappy about this, but was told that he could sign the terms, ask to be transferred to a bigger pub (and receive more pay) or resign. He resigned on 29 December citing the treatment by his manager and being forced to sign a new contract. He brought a claim for unfair dismissal, which was not upheld.  The Tribunal found that senior managers had intervened to stop problems escalating. The decision was appealed to the EAT.

The EAT held that this was not a situation where the actions of the employer had been likely to destroy or seriously damage the employment relationship. In fact, the company’s managers had taken Mr Assamoi’s concerns seriously and agreed with him that his manager’s actions were unreasonable.

As actions were taken to prevent the incident escalating as soon as possible, Mr Assamoi could not rely on the previous actions of his manager to be a fundamental breakdown of trust and confidence.

The EAT had to consider the previous decision of Buckland v Bournemouth University, in which the Court of Appeal held that an employer could not ‘cure’ a fundamental breach of trust and confidence. The EAT said that Mr Assamoi’s case could be distinguished as there was no ‘cure’ in this situation.  Although the manager’s actions had been wrong, they were not sufficient to justify a resignation and, additionally, other managers had prevented matters escalating.

Finally, the EAT held that Mr Assamoi had not been ‘forced’ to sign a new contract, having been provided with the option of a transfer.

The EAT’s decision in this case is useful for employers as it gives them an opportunity to take swift action in relation to any grievances and right any wrongs done to an employee.

Taking swift action can often prevent matters from escalating into a situation whereby the employee could resign and claim constructive dismissal. This is in contrast to the Buckland v Bournemouth University decision, whereby a fundamental breach of contract cannot be cured after it has taken place.

Contact us for more information on employee grievances and constructive dismissal.

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