Assamoi v Spirit Pub Company (Services) Ltd (formerly known as Punch Pub Co Ltd) EAT/0050/11
constructive dismissal | disciplinary action | fundamental breach of contract
The Employment Appeal Tribunal (EAT) has held that the employment tribunal was entitled to find that an employee was not constructively dismissed when he resigned after his manager unjustly took disciplinary action against him that was dropped after a swift and fair-minded investigation.
Implications for employers
- The EAT distinguishes an employer taking early steps to prevent a breach of the implied term of mutual trust and confidence (which can prevent a constructive dismissal) and trying to cure a breach that has already taken place (which cannot prevent a constructive dismissal).
- This decision reassures employers that unjust disciplinary action brought by a single individual (for example, by an overzealous manager) that is swiftly dealt with is unlikely to amount to a fundamental breach of contract.
- This case shows the value to employers of dealing with disciplinary action promptly. If the disciplinary action is unfair, the longer the employer takes to resolve it, the more likely it is that the employee will be able to resign and claim constructive dismissal.
Mr Assamoi was a head chef for a pub chain. He had a troubled employment history with the company that came to a head in December 2009. Mr Cooper, the pub manager, agreed that Mr Assamoi could take holiday from 27 November to 10 December, despite the lead up to Christmas being a busy time of year. Two other employees, Mr Truong and Mr De Oliveira, agreed to cover Mr Assamoi's absence. Mr Assamoi agreed to work on Thursday 3 December and Sunday 6 December.
On 3 December, Mr Assamoi told Mr Cooper that he could not work on Sunday 6 December after all. After Mr Truong and Mr De Oliveira agreed between themselves to change their shifts, Mr Truong ended up working in the kitchen alone on Monday 7 December, which led to very slow food service.
On discovering that Mr Truong was working alone on 7 December, Mr Cooper texted the three employees to tell them to attend a meeting in the kitchen at 9am on Tuesday 8 December. The employees were told that they would face disciplinary action if they did not attend.
All three employees failed to attend the meeting and Mr Assamoi was suspended on full pay pending an investigation. An investigatory meeting, chaired by managers from two other pubs, took place on 11 December. At the meeting, it became clear that Mr Assamoi had been on holiday on the date on which he was required to attend the team meeting and he had arranged not to be present on Sunday 6 December. It was decided that no disciplinary action should be taken and the suspension expunged from Mr Assamoi's record.
On 12 December, Mr Assamoi raised a grievance regarding Mr Cooper's treatment of him, accusing the manager of undertaking malicious and spurious disciplinary action against him and complaining about the short notice that he was given of his investigatory meeting.
On his return to work, Mr Assamoi was asked to sign a new standardised contract of employment that incorporated a new job title for him. He refused to sign the contract, alleging that the new terms meant a reduction in his hours of work. The employment tribunal later concluded that he was asked to sign a zero-hours contract and had been told in the meeting that he would normally be working 35 hours per week, fewer hours than he usually worked. Mr Assamoi was told to think it over.
On 17 December 2009, Mr Assamoi attended a meeting with Mr Cooper. Mr Assamoi asked for an apology for Mr Cooper's earlier treatment of him. Mr Cooper refused to apologise because he felt that he had nothing to apologise for and had made a reasonable management request that the three employees had ignored.
Mr Assamoi never returned to work. On 29 December 2009, he sent a letter of resignation, which stated that he was tendering his formal resignation "effective immediately" and complaining about his treatment at the hands of Mr Cooper and that he was asked to sign a new contract of employment resulting in his being "demoted" and given "reduced hours". His grievance was heard, but it was unsuccessful.
Mr Assamoi claimed constructive dismissal. The employment tribunal concluded that the acts of which Mr Assamoi complained, whether taken singly or cumulatively, could not amount to a fundamental breach of contact so as to entitle him to resign and treat himself as constructively dismissed. Mr Assamoi appealed on a number of grounds, including that the employment tribunal had not considered the impact of the decision in Buckland v Bournemouth University Higher Education Corporation  IRLR 445 CA, in which the Court of Appeal held that an employer cannot cure a repudiatory breach of contract before an employee decides to resign.
The EAT rejected the appeal, holding that there is a distinction between:
- preventing matters escalating into a breach of the implied term of mutual trust and confidence (which the employer did here); and
- trying to cure a breach that has already taken place (which was the case in Buckland).
The EAT noted that this distinction is often easier to recognise than to define, but that there is a difference between a fundamental breach of contract that an apology by an employer cannot cure and an employer taking action that can prevent a breach of contract taking place. The members of the EAT with industrial experience pointed out that the objective of a grievance or disciplinary procedure is that the employee is given the opportunity to articulate his or her concerns about the behaviour of management or defend him- or herself against allegations that are made.
The EAT gave the example of an employee, John Smith, being given notice of a disciplinary hearing concerning a sexual assault that he is alleged to have committed against a female employee. It later transpires that, because of an administrative mix-up, the letter should have been sent to another employee of the same name. The EAT asked: would the recipient of the first letter, sent in error, be entitled to say there has been a breach of an implied term, even though, as soon as he took up the matter, there was a profuse apology and an acceptance that the recipient of the letter was wholly innocent of any inappropriate behaviour? It might be that the most cursory enquiries by the employer would have revealed that the recipient of the letter did not work on the same site or in the same section as the female employee concerned and may indeed have never met her.
The EAT ventured to suggest that, in these circumstances, the employment tribunal would consider that the employer's prompt apology for the mistake, and the removal of the apprehension that the recipient would undoubtedly face, prevents such a breach of contract. However, if the employer did not act to check the protests of the innocent employee and allowed the matter to drag on, before finally accepting that a mistake must have been made, different considerations might apply.
The EAT examined the employment tribunal's decision and could find nothing to suggest that the tribunal came to a view that there had been a breach of contract that was later cured. The proper interpretation of the tribunal judgment was that, although Mr Cooper had behaved badly towards Mr Assamoi, the manager's behaviour was not so serious as to justify the claimant leaving his employment. The tribunal was entitled to look at the whole picture, including the fair-minded investigatory meeting, to conclude that the employer's actions prevented the matter from escalating into a state of affairs that would have justified Mr Assamoi leaving and claiming that he had been constructively dismissed.
Case transcript of Assamoi v Spirit Pub Company (Services) Ltd (formerly known as Punch Pub Co Ltd) (on the BAILII website)