09 August 2012 #Employment
A recent case concerning hot heads in the kitchen may be of interest to Gordon Ramsay. In Assamoi v Spirit Pub Company (Services) Ltd the EAT held that even though an employer cannot cure a breach of trust and confidence, it can prevent a situation escalating into a breach of trust and confidence by apologising.
Mr Assamoi was employed by Spirit Pub Company Services Ltd and worked in a kitchen in a pub in West London. There had been a history of disciplinary incidents and grievances in the past involving Mr Assamoi, although none were recent. He had been given a transfer to another pub in 2008.
The Company went through a period of reorganisation, which led to Mr Assamoi and several other employees refusing to sign new contracts. With the situation already strained between the staff and management, another dispute arose over an occasion where the kitchen had been understaffed at a particularly busy period and customers had to be turned away. Mr Cooper, the manager of the pub decided to call an emergency meeting out of hours two days later and all the kitchen staff were suspended, including Mr Assamoi. However, it turned out that Mr Assamoi had been on authorised leave during the period in question. Accordingly, he was told that no further action would be taken and references to the suspension would be removed from his record. When Mr Assamoi returned to work, he demanded an apology from Mr Cooper, which was not forthcoming. He was however offered the opportunity to transfer to another pub, if he signed his contract, but he refused.
Eventually Mr Assamoi, submitted a grievance against Mr Cooper, complaining of the “spurious” disciplinary charges brought against him. He also accused the company of giving him a contract which he said amounted to a demotion and a reduction of hours. The grievance process ended soon after when Mr Assamoi refused to return to work, even if Mr Cooper apologised.
Mr Assamoi then brought a tribunal claim for unfair dismissal. The Tribunal did not condone Mr Cooper’s behaviour in calling a meeting when Mr Assamoi was away, suspending Mr Assamoi (when he was on authorised leave) and refusing to apologise to him. They said these actions were likely to damage the relationship of trust and confidence between Mr Cooper and Mr Assamoi. However, they considered that as Mr Assamoi had been told at the investigation meeting that no further action would be taken and he had been offered a transfer to another pub, these actions essentially prevented Mr Cooper’s failures from constituting a breach of the trust and confidence term. The Tribunal also said that in signing the contract, there would have been no demotion or substantive change to Mr Assamoi’s terms.
The Tribunal dismissed the claim. Mr Assamoi appealed primarily stating the Tribunal had failed to apply the case of Buckland. This case said that a breach of trust and confidence could not be “cured” by the actions of others. Therefore, in deciding whether an injured employee can treat himself as constructively dismissed, the law must "ignore the olive branch" offered by the employer after the breach has taken place. The EAT also dismissed the claim, saying that the Tribunal had not misapplied the law according to the Buckland case. It was acknowledged that Mr Cooper had behaved badly, but not so seriously to justify Mr Assamoi’s resignation from his post. In conclusion, this indicated that Mr Cooper’s actions could be construed as being “likely to damage” and not “likely to destroy or seriously damage” the mutual trust and confidence relationship. It was effectively recognised by the EAT in Assamoi, that trust and confidence is rarely destroyed by a single discrete act; the relationship normally breaks down because of an ongoing situation which is allowed to fester and is brought to a head by a "final straw". The decision in Assamoi shows that, in such cases, an offer to make amends may pull the employer back from the brink of what might otherwise become a repudiatory breach. What the offer of amends cannot do, following Buckland, is rescue the employer once it has gone over the edge.