If you make some horrible error in your treatment of an employee, how far can your addressing it swiftly prevent it becoming a constructive dismissal claim?
Two quite similar stories in the law reports shed some light on this. In 2010 the Court of Appeal concluded in Bournemouth University Higher Education Corporation –v- Buckland that where the employer was guilty of a fundamental breach of contract, it could not “mend” that breach by profuse apologies and other appropriate remedial steps afterwards. See our Review for that case here. That was the case even though Buckland, the employee, was found to have been unnecessarily painful about the whole thing – the EAT had decided that someone else could well have accepted the Corporation’s remedial steps and in that way remained in employment, honour satisfied, quite unscarred by the whole exercise. The Employment Appeal Tribunal has this week looked at this question again on behalf of a Mr Assamoi. He had been employed by Spirit Pubs for some time, though as the Judge recorded rather delicately, his “job history was not one of employment that was untroubled and uneventful”. He and his boss had an extended falling-out in which neither man covered himself in glory, the boss even less than Assamoi. Assamoi raised a grievance about this. The complaint was substantially upheld and appropriate action taken against the boss. Assamoi then resigned nonetheless and claimed constructive dismissal.
In an attractive and sensible ruling the Employment Appeal Tribunal said in effect that the purpose of bringing a grievance is to get something fixed before it becomes too serious, and so if it was then fixed, it could not become the fundamental breach of contract necessary to generate a constructive dismissal claim. The claim therefore failed. Where Assamoi differed from Buckland was in the gravity of the conduct which was the subject of the Claimant’s grievance in each case. Some bust-ups are retrievable, therefore, while others are not. Where does that leave the poor employer trying to address the problem? Will bending over backwards by upholding the grievance avoid a constructive dismissal claim on the one hand or merely create evidence to support it on the other?
The answer lies as a matter of law in the nature of the conduct complained of. If that goes so far as to be a repudiatory breach of contract then Buckland held (with great reluctance on the part of the Judge and a frank admission that it was not a desirable conclusion from the employment relations perspective) that it could not be remedied. No matter how much the employer acknowledges that the conduct had been wrong and takes steps to provide redress, the employee can therefore still choose to resign and claim constructive dismissal. However, if the conduct complained of was not so serious as to be a fundamental breach, then prompt and effective steps to correct the position could well be enough to prevent the situation tipping over into constructive dismissal territory.
But whether a particular state of affairs complained of has crossed the line into a fundamental breach is rarely visible to the untrained eye. Should HR defend such grievances regardless of cost or merit, or concede the stronger of them and try to make amends? In our view, clearly the latter. You will rarely be criticised by an Employment Tribunal for not defending the indefensible. Moreover, with luck the employee who is the victim of the treatment will be less petulant (the word used by the Court) about his employer’s mea culpa than was Professor Buckland.