Constructive dismissal: Employee not entitled to resign and bring claim in response to manager's which were "likely to damage" relationship of trust and confidence
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 claim.
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.
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