An employee who was vindicated by his employer following an
unfair suspension could not claim constructive dismissal.
Employment contracts contain express and implied terms. One such
implied term is the employer's duty not to act in a manner
which is likely to destroy, or seriously damage, the relationship
of mutual trust and confidence.
Spirit Pub had found Mr Assamoi, their kitchen help, difficult
to manage. When the kitchen was left understaffed on a busy day,
the pub manager Mr Cooper demanded all staff attend an out-of-hours
meeting 2 days later. Mr Assamoi was on pre-arranged holiday on the
understaffed day and the day of the meeting but was suspended for
his non-attendance at the meeting. On his return, he attended an
investigatory meeting where it was made clear that his absence had
been sanctioned on both days, no further action was taken and the
reference to his suspension was erased from his record. He demanded
an apology from Mr Cooper which was not forthcoming and he was also
offered a transfer to a new pub if he signed a less attractive
contract. He claimed constrictive dismissal.
The Employment Tribunal found that Mr Cooper's actions were
"likely" to breach the relationship but had not destroyed
it due to the actions at the investigatory meeting. The Employment
Appeal Tribunal ("EAT") agreed.
If an employer is able to act reasonably, investigate any
complaints quickly and rectify any mistakes then it may be able to
avoid a successful constructive dismissal claim.
A constructive dismissal claim based on the grounds of
"breakdown of trust and confidence" usually takes place
after a series of events culminating in the "final
straw". It is much more difficult for an employer to rescue
the situation at this point but it can try to prevent the
relationship from reaching that stage. This case highlights the
importance of acing quickly where complaints and grievances are
found to be justified.
If the employer cannot prevent the breach of contract, it could
offer to correct the breach by, for example, offering the employee
a new role in the organisation. This puts the employee in a
difficult position. In the 2011 case of Debique v Ministry of
Defence, Ms Debique won her discrimination claim against her
employer but was not awarded any compensatory loss of earnings as
she was found to have unreasonably refused to accept an offer to
transfer to a new position.
In October 2012, the Court of Appeal confirmed that a Service Provision Change ("SPC") TUPE transfer can only occur where the client who receives the service, before and after the change, remains the same (Hunter v McCarrick  EWCA Civ 1399).
Following much debate, on 24 April 2013 the House of Lords finally gave its approval to employee shareholder status which will now take effect from Autumn 2013.
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