Constructive Dismissal for failing to publicise job vacancies
27 May 2011
In Aziz v Phillips and Cohen Associates (UK) Ltd ET/2405291/10 the Tribunal held that failure to comply with the terms of a staff handbook, which it found were contractual, and deal with a grievance appeal properly meant the Claimant had been constructively dismissed.
The company staff handbook stated that "as far as reasonably practicable... where vacancies may be filled by promotion or transfer they will be published to all eligible employees".
In September 2009, after two assistant managers left, replacements were urgently sought. One recommendation was appointed and a person who applied after happening to hear about it from the Company President at a Christmas party. The vacancies had not been internally publicised in accordance with the handbook. The Claimant raised a grievance stating this was a breach of contract. This was rejected by the company who claimed that a speedy decision meant it did not have time to advertise the positions. The Claimant appealed, but the appeal officer failed to deal with the issues properly and the Claimant resigned within an hour of the appeal hearing claiming constructive dismissal.
The handbook was found by the tribunal to be contractual, not merely "best practice" as argued by the employer. This was on the basis that there were references in the Claimant`s statement of employment to sections of the handbook, there were matters in the handbook which provided for disciplinary sanctions and the grievance procedure sent to the Claimant mirrored the procedure in the handbook. Nor did the tribunal accept the employer`s arguments that it was not "reasonably practicable" to advertise the posts given the company was small and an email could have been sent to eligible employees. Further, it found the failure and lack of explanation for dealing with the grievance points properly, was a fundamental breach.
The lesson to be learned is that even where urgent action is required, this does not entitle employers to disregard the handbook terms. Further, the case serves as a reminder that failure to deal with a grievance appeal properly can constitute a fundamental breach of contract and appeal officers should ensure that every ground of appeal raised is dealt with in a transparent and fully comprehensive manner. Employers may also wish to provide that handbooks and employment policies are non contractual.
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