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In Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11 the
EAT concluded that there was no breach of trust and confidence when
an employer vindicated an employee whose manager had made spurious
allegations that were likely to damage trust and confidence
Mr Assamoi worked for Spirit in the kitchens of its West London
pubs. He experienced a turbulent relationship with his manager, Mr
Cooper and a dispute arose over an incident when the kitchen had
been understaffed on a busy day. Mr Cooper called an emergency
meeting to discuss the issue, but Mr Assamoi did not attend. Mr
Cooper accused him of being absent without leave and suspended him.
Mr Assamoi had in fact been on a pre-arranged period of leave, both
on the day of the incident and the day of the meeting.
An investigatory meeting was held with Mr Assamoi, led by two
managers from other Spirit pubs. It was established that Mr
Assamoi's absence had been sanctioned and he was told that no
further action would be taken. The employer also offered Mr Assamoi
a transfer to another pub to alleviate any friction with Mr Cooper,
but he refused.
Mr Assamoi demanded an apology from Mr Cooper, which was not
forthcoming. He submitted a grievance complaining of
"spurious" disciplinary charges and later resigned and
brought an unfair dismissal claim.
The Tribunal dismissed Mr Assamoi's claim. It
concluded that Mr Cooper's actions were acts "likely to
damage" the relationship of trust and confidence between
himself and Mr Assamoi. However, the independent managers'
subsequent actions prevented the conduct from constituting an
actual breach of trust and confidence.
Mr Assamoi appealed, arguing that the Tribunal should not have
treated Mr Cooper's breaches of trust and confidence as having
been "cured" by subsequent actions. The EAT dismissed the
appeal. Mr Cooper's actions were merely "likely" to
damage the relationship of trust and confidence. The way in which
the other managers had dealt with the matter prevented it
escalating into a state of affairs that would have justified him
resigning.
Comment: This in an interesting decision which
shows that an offer to make amends can pull an employer back from
the brink of what might otherwise become a breach of trust and
confidence. However, what a subsequent offer of amends cannot
do is cure a breach once it has occurred. That said, even
where a breach has already happened, positive action by an employer
can still be beneficial because it may put the onus firmly on the
employee to resign promptly.
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