The majority of business owners make every effort to avoid a situation that leads to an employee bringing a case before the Employment Tribunal. Procedures should be in place to enable any issues to be discussed and resolved before a situation reaches the point where an employee feels there is no other option but the Employment Tribunal. The costs to a business in seeking legal advice, lost working time by witnesses attending the Tribunal and the risk of a substantial award being granted by the Tribunal if the business loses, as well as the impact of reputational damage to the business is far too great to not to make a considerable attempt to avoid such a situation.
All of which makes the recent case heard in the Employment Tribunal relating to constructive dismissal relating to the business owner's conduct towards a long-standing employee all the more puzzling.
Edgar Simplico began working at L'antipasto, an Italian restaurant in Battersea, in 2007 under Alfonso Cretella the present owner's father. Alessandro Cretella took over the business in 2016. The case hinged on the digestive system of Mr Cretella and his childish sense of humour. Mr Cretella suggested that his medical condition, oephophagitis, considerably heightened his propensity for flatulence. Regrettably, this coupled with his admitted childish sense of humour meant that he thought it was amusing to wave the consequences of his problem towards Mr. Simplico whilst grinning when Mr. Simplico was serving diners in the restaurant. Mr. Cretella also, from time to time, called Mr. Simplico over to him only to burp in his face. It was also alleged that Mr. Cretella discussed his bodily functions and other inappropriate topics in what was described as "unfiltered" language as well as inviting Mr. Simplico to see a photograph of his (Mr. Cretella's) faecal matter. The last straw for Mr. Simplico arose when in August 2020 a loud expletive-ridden row broke out between him and Mr. Cretella in the restaurant in front of the diners. After which Mr. Simplico was signed off work for one week with stress and anxiety prior to a three-week period of annual leave. On Mr. Simplico's return his tendered his resignation following a meeting with Mr. Cretella.
Mr. Simplico brought his case before the Employment Tribunal alleging unfair dismissal. The Tribunal ruled that Mr. Simplico's resignation was as a result of constructive dismissal which meant that it was unfair. Mr. Cretella's behaviour towards Mr. Simplico was unreasonable conduct.
The Tribunal also commented on the loud row in the restaurant in front of the diners saying"'[Mr Simplicio] cannot be expected to put up with the behaviour Mr Cretella displayed on that day. This conduct is so serious as to be likely to seriously damage the relationship of trust and confidence, there was no reasonable and proper cause for such an extreme reaction. Mr Cretella later apologised but by then it was too late.'
Mr. Simplico will be awarded compensation which will be decided at another hearing.
Giambrone & Partners' highly experienced employment law team warn that employers should take every step possible to prevent an issue being heard before the Tribunal regardless of their view of the rights or wrongs of the matter, as once an issue is before the Employment Tribunal there is no more opportunity for negotiation between the parties and the Tribunal decision is legally binding, including the very real possibility of a large award in compensation if the Tribunal supports the employee's case. The case involving L'antipasto demonstrates that childish behaviour is completely inappropriate in the workplace regardless of whether it is carried out by the staff or the business owner.
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