Coffin Mew's Employment News Issue 62
“Boris Johnson is the person to lead this country….. back into the seventeenth century.”
Well, good old Blighty can put on a great show can’t we? It would take a very cynical person not to have been inspired by the events of the last week.
As a fellow sporter of ginger sideburns, I felt a particular affinity towards the fabulous “Wiggo” and his achievements on the bicycle over the last month, although I’m afraid that’s where the similarity ends because I suspect Bradley weighs about the same as my right leg!! If he doesn’t receive a knighthood after his recent exploits I will shave off my sideburns in protest.
The other memorable moment for me this week was the sight of the constantly hilarious Boris Johnson dangling in mid-air from a zip wire after he lost momentum before the finish. Seriously, if you haven’t seen the footage – treat yourself and look it up on t’internet (subject to any internet usage policies of your place of work!) – you will not be disappointed.
The image of Boris wearing a hard hat and waving two union jacks as the zip wire harness slowly but surely started to dig into his ‘mayoral jewels’ will stay with me for a long time; not least because of the complete lack of attempts to help him by the spectators, who just looked up at him giggling and taking photos!! He really does inspire trust and confidence doesn’t he?
Speaking of which, the concept of ‘trust of confidence’ allows me to zip wire into this week’s legal bit – unless I get stuck.
Constructive dismissal for breach of contract
The Legal Bit
As, most of you will know, if the implied duty of trust and confidence between an employee and their employer is seriously and irreparably damaged the employee can resign and claim constructive dismissal for breach of contract (on the assumption that they worked for their employer long enough). The recent case of Bournemouth University Higher Education Corporation v Buckland determined that an employer’s subsequent actions cannot cure a breach of contract after it has happened. However the more recent case of Assamoi v Spirit Pub Company Ltd has suggested that in some circumstances it may be possible for employers to rectify the mistake to prevent it becoming a breach of contract.
In this case, Mr Assamoi worked as a Kitchen Team Leader for the Spirit Pub Company Ltd (the Company). His employment had not been trouble free and from June 2003 he had been involved in several disciplinary processes and raised numerous grievances.
From June 2009 Mr Assamoi was line managed by Mr Cooper and following a turbulent relationship matters came to a head in December 2009 when Mr Assamoi booked annual leave shortly before the Christmas period. This holiday was subject to the proviso that the two other members of kitchen staff both worked the days he was absent. On one such day Mr Cooper discovered that the two remaining members of staff had split the shifts between them and only one person was working each day. Mr Cooper ordered all three members of staff to attend a meeting the following day and threatened them with disciplinary proceedings. Due to his annual leave Mr Assamoi did not attend the meeting and he subsequently received a letter suspending him on full pay pending an investigation into his failure to attend work on the day in question and refusal to attend the meeting.
At the investigatory meeting the Company recognised that Mr Assamoi had been on holiday at the time and understandably decided that no further action would be taken against him. It was confirmed in writing that the paperwork relating to the disciplinary process would be removed from his record and the Company apologised for the mistake, although Mr Cooper refused to apologise personally.
Mr Assamoi raised a grievance complaining about the treatment of the kitchen staff by Mr Cooper and a few other issues. The Company dealt with this grievance; however Mr Assamoi resigned on 29 December 2009 before the procedure had been completed. Mr Assamoi claimed that he had been constructively dismissed.
The Tribunal had to consider whether the way Mr Cooper had treated Mr Assamoi was a fundamental breach of the mutual implied term of trust and confidence, entitling him to resign without notice and regard himself as having been constructively dismissed.
Mr Assamoi lost.
The Tribunal did accept that Mr Cooper’s behaviour had been inappropriate and, coupled with his failure to apologise, had the potential to damage the relationship of trust and confidence between the Company and Mr Assamoi; however the subsequent action taken by the Company prevented it from becoming a breach. The Company had accepted Mr Assamoi’s account of events about his holiday, agreed to take no further action and offered him a transfer to another pub under a different manager to resolve the situation moving forward. The Tribunal believed that this should have been sufficient to salvage the relationship.
Mr Assamoi appealed the decision to the Employment Appeal Tribunal (EAT). Mr Assamoi lost again.
The EAT agreed with the Tribunal; the object of a grievance and disciplinary procedure is to give an employee the opportunity to voice their concerns and defend themselves and give the employer a chance to act upon this. Not all actions should automatically be seen as a breach of contract but should be viewed in light of the surrounding context.
The EAT gave a useful example. There were two employees in a large firm named John Smith. One employee was suspected of sexual assault of a female employee and was invited to a disciplinary hearing. Due to an administrative mix-up the letter for the hearing was sent to the wrong John Smith. If the mistaken recipient raised this and was offered an apology and reassurance that it had been a mistake then it would be nonsensical for him to be able to say that there had been a breach of the implied term of trust and confidence. The prompt actions of the employer could prevent such a breach occurring. If, however, the employer failed to investigate and allowed the matter to drag on then this may be sufficient to tip the scales the other way and create a breach that could not be undone.
So, it would seem that there is now a distinction between preventing matters escalating into a breach of the implied term of mutual trust and confidence and trying to cure a breach which has already taken place. The question that needs to be asked in such cases is whether the actions complained of are sufficiently serious to damage a relationship to such an extent that the implied term has been breached. There is a sliding scale of damage and where on this scale a particular action lies is not an exact science.
Whilst employers should not relax too much when dealing with such situations, there is a glimmer of hope that where mistakes have been made they can in some cases be rectified before a full breach of contract occurs. This should bring some comfort to companies when carrying out disciplinary and grievance procedures and should encourage companies to take swift action whenever an employee raises any concerns. The sooner action is taken (by way of grievances and accepting any wrongdoing and trying to put it right) the greater the chance of stopping potentially damaging actions becoming full contractual breaches, leading to constructive dismissal claims.
As an aside.....
As the news is focussing on a big sporting event this week (you might have noticed it) there is very little out there that piqued my interest. As such, I have reverted to one of my favourite topics of stupid (but genuine) answers to interview questions. Enjoy!
At the end of interviews when asked “do you have any questions?” the following questions were raised:
- "What do you want me to do if I cannot walk to work if it's raining? Can you pick me up?"
- "What is your company's policy on Monday absences?"
- "If I get an offer, how long do I have before I have to take the drug test?"
In answer to the question “Tell of a time you made a mistake at work and how you dealt with it”:
- "I stole some equipment from my old job, and I had to pay for its replacement."
Until next week.