Constructive dismissal: Employee not entitled to resign
and bring claim in response to manager's which were
"likely to damage" relationship of trust and
Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11
The employee's constructive dismissal claim failed because,
although his manager had behaved in a way "likely to
damage" trust and confidence, this was not sufficient to
satisfy the relevant test which required conduct "likely to
destroy or seriously damage" the relationship of trust and
confidence. In this case, the actions of other managers had
prevented the situation from getting to such a serious point by
which Mr Assamoi would have become entitled to resign and claim
constructive unfair dismissal.
Where there has been a fundamental breach of contract by the
employer, entitling an employee to resign and claim constructive
dismissal, the employer cannot try to put things right after the
event in order to deprive the employee of his right.
However, this case confirms that an employer may take action
prior to a situation becoming sufficiently serious, with the result
that the employee never became entitled to resign and bring a
The distinction is clear, but which side of the line a
particular case falls on will be a question for the Tribunal.
However, this decision emphasises the value of an employer seeking
to make amends with an employee in appropriate cases in order to
reduce the risk of a successful constructive dismissal claim. If
the attempt is made early enough, it may deny the employee the
right to claim.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures will usually increase the risk of a dismissal being found to be procedurally unfair and can result in increased compensation being payable to a dismissed employee.
BIS has published an updated indicative timetable of the planned key dates for the Enterprise and Regulatory Reform Act 2013 and the introduction of financial penalties for employers who breach workers rights will now not be in October 2013.
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