Labour & European Law Review Weekly Issue 287 20 September 2012
To succeed in a claim of unfair dismissal, claimants have to show that their employer committed a fundamental breach of contract (among other things). In Assamoi v Spirit Pub Company (Services) Ltd, the Employment Appeal Tribunal (EAT) said that the company had avoided a fundamental breach from occurring by carrying out a thorough investigation.
Mr Assamoi worked in various pubs belonging to the company from March 1993 until his resignation in 2010, a period of employment described by the tribunal as “turbulent”. He had been disciplined on a number of occasions and had also lodged various grievances against his managers during that time.
In June 2007 he requested a transfer to another pub where he started in March 2008. A year later, a new manager, Mr Cooper, took over. Following a reorganisation Mr Assamoi was offered a new contract which he refused to sign.
In November 2009, Mr Cooper sanctioned a period of annual leave for Mr Assamoi, on condition that the other two kitchen workers covered his absence. On 7 December the manager discovered that only one of the kitchen staff was on duty, as a result of which he had to suspend the food service in the pub.
Mr Cooper texted all three chefs telling them to attend a meeting the next day (although Mr Assamoi was still on holiday), but as none of them turned up, he suspended them all. Following an investigation by two other managers, no action was taken against Mr Assamoi.
However, he took out a grievance against Mr Cooper and resigned on 29 December because his manager refused to apologise to him. He claimed constructive dismissal.
The tribunal described Mr Cooper’s behaviour as inappropriate and over-reactive, which resulted in the costly loss of the entire kitchen team in the lead up to the busiest season of the year. His actions, it said, were “likely to damage a relationship of trust and confidence between himself as manager and the Claimant.”
However, it held that, because of the way that the company had dealt with Mr Assamoi’s complaints (which included offering him the option of transferring to another pub under a different manager), it had prevented Mr Cooper’s conduct from constituting a breach of the implied term of trust and confidence entitling him to resign.
Mr Assamoi appealed, arguing that the tribunal had misapplied the law set out in Buckland v Bournemouth University Higher Education Corporation, in which the Court of Appeal held that a fundamental breach of contract cannot be remedied once it has happened.
However, the EAT rejected his appeal, saying that although Mr Cooper had behaved badly, his behaviour was not so serious as to justify Mr Assamoi’s resignation. In addition, the way in which the two other managers conducted the investigation had prevented matters from escalating to the point where Mr Assamoi would have been justified in leaving and claiming constructive dismissal.
The company had satisfied the point of grievance and disciplinary procedures, which was to give employees the opportunity to articulate their concerns about the behaviour of management and to defend themselves against allegations that they were unfit to stay in their job.
There was an important 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. As there had not been a fundamental breach in this case, Mr Assamoi could not claim constructive dismissal.
The key to understanding this decision is the fact that although the respondent’s behaviour was bad, it was not bad enough. Had the later investigation been cack-handed things might have been different, but it wasn’t and it stopped the rot. This case is confined to its facts, and readers should not see it as in any way challenging the lesson of Buckland that where an employer’s behaviour is bad enough then there is no going back without the employee’s consent, no matter how profuse the apology.