Sorry seems to be the hardest word

21 Sep 2012

In Assamoi v Spirit Pub Company (Services) Ltd the Employment Appeal Tribunal decided that in certain circumstances an employer may be able to prevent a situation escalating into a breach of trust and confidence by apologising to their employee.

The Employment Appeal Tribunal found that an employee was not constructively dismissed when he resigned after his manager unjustly took disciplinary action against him which was later dropped after an investigation.  It was decided by the Tribunal that the employer's actions prevented the situation escalating into a breach and that the manager's conduct on its own was not enough to seriously damage trust and confidence.

Employers and employees are bound by an implied term that they will not act in a manner which is likely to damage the relationship of mutual trust and confidence between them. A breach of mutual trust and confidence may lead to a repudiatory breach of an employees employment contract. This would lead to the obligations under the contract being discharged and the employee resigning and potentially claiming that constructive unfair dismissed.

Mr Assamoi was a head chef for a pub chain. There was a dispute over an occasion when the kitchen had been understaffed on a busy day leading to customers being turned away. This led Mr Cooper, the pub manager, to call an emergency meeting out of hours, which none of the kitchen staff attended. Mr Cooper accused them of being absent without leave and suspended them pending an investigation. Mr Assamoi had been on an authorised period of holiday leave, both on the day of the understaffing and the day of the meeting. Two managers from other pubs held an investigatory meeting and soon realised that Mr Assamoi's absence had been authorised. The managers assured Mr Assamoi that no further action would be taken regarding this.

Mr Assamoi demanded an apology from Mr Cooper which he refused to do. Mr Assamoi submitted a grievance and another complaint in relation to a new employment contract that he was asked to sign. His grievance was heard, but it was unsuccessful. Mr Assamoi resigned and brought a constructive unfair dismissal claim.

The tribunal had found that Mr Cooper's actions were only likely to damage the relationship of between the employee and employer. His actions did not meet the test of being 'likely to destroy or seriously damage' the relationship. The managers had dealt with the investigatory meeting and the grievance in a fair-minded way which had prevented it escalating into a state of affairs that would have justified him resigning. This was therefore a case of preventing a breach from occurring, rather than trying to cure a breach.

Our view:

It was recognised by the Employment Appeal Tribunal that trust and confidence would be rarely destroyed by a single act.  This decision has confirmed that employers are able to make amends with employees to bring a situation back from a potential repudiatory breach. However, employers should be warned that this 'olive branch' can not rescue a breach once it has gone over the edge.

Employers are reminded that an offer to make amends after a breach has been committed may improve the employer's position. This act puts the onus firmly on the employee to either accept the breach and resign promptly, or be deemed to have affirmed the contract.