Constructive Dismissal

David Baynton

Assamoi -v- Spirit Pub Company (Services) Ltd UKEAT/0050/11

If an employer upholds an employee’s grievance about treatment by his manager, this can prevent the employee relying on the treatment to show a breach of the implied term of trust and confidence.

Employers and employees are bound by an implied term that they will not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between them.

In Assamoi, the EAT found that the employee’s immediate manager had behaved badly towards the employee but this did not, in itself, amount to a breach of the implied term of mutual trust and confidence.

As a result of the actions of the more senior managers, the matter had been prevented from escalating into a state of affairs that would have justified the employee leaving and claiming he was constructively dismissed.

There is a distinction between preventing matters escalating into a state of affairs amounting to a breach of the implied term and seeking to cure a breach of the implied term that has already taken place. A breach that has taken place cannot be cured: Buckland -v- Bournemouth University Higher Education Corporation [2010] EWCA Civ 121. In Buckland, exam papers marked by Professor Buckland had been re-marked without his knowledge.  This did, in itself, amount to a breach of the implied term of trust and confidence which could not be cured by a subsequent internal investigation into the matter which vindicated Professor Buckland.

If you have any queries relating to this blog post,  or on any aspect of employment law, please contact David Baynton on 0117 9453069 or dbaynton@metcalfes.co.uk.

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