Assamoi v Spirit Pub Company (Services) Ltd

A completed repudiatory breach of the implied term of mutual trust and confidence cannot be cured by the employer. However, a prompt and fair investigatory or grievance process may prevent inappropriate managerial conduct from escalating into a fundamental breach in the first place.

Constructive dismissal requires conduct likely to destroy or seriously damage trust and confidence. The tribunal may assess the whole factual picture, including the employer’s response. The Employment Appeal Tribunal will not re-try factual disputes or interfere absent a legal misdirection, an unsupported finding, or perversity.

The claimant, a longstanding head chef or kitchen team leader, resigned after his manager suspended him during holiday leave and alleged that he had failed to work a shift and attend a meeting. A subsequent investigation accepted the claimant’s account, lifted the suspension, took no action, and offered him the choice of returning to work, transferring, or resigning.

The Employment Tribunal rejected his constructive unfair dismissal claim. It found that the manager’s conduct was likely to damage trust and confidence, but that senior management’s fair handling prevented it becoming a fundamental breach. The claimant appealed, principally relying on [2010] EWCA Civ 121, which concerned the inability to cure a completed repudiatory breach.

1. Appeal dismissed. Properly read, the Employment Tribunal had not found that a completed repudiatory breach had later been cured. It found that the manager’s conduct, although inappropriate and likely to damage trust and confidence, had not become conduct likely to destroy or seriously damage that relationship.

2. The distinction was consistent with Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121. A completed repudiatory breach cannot be cured by the contract-breaker. But a prompt investigation which accepts the employee’s account, removes the allegation and offers a workable way forward may prevent events from escalating into a fundamental breach.

3. The Tribunal was entitled to consider the total picture, including the investigatory meeting. Its finding that the claimant’s earlier complaints were too remote to form a continuing course of conduct, and had in any event been affirmed by continued employment, was open to it.

4. The challenges concerning transfer, job title, hours and earlier incidents sought impermissibly to re-argue factual findings. There was no legal error, lack of evidence, or perversity. In addition, the Tribunal had found that the manager’s conduct was not the real cause of the claimant’s resignation; that finding would independently have defeated the appeal.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the rejection of his constructive unfair dismissal claim, [2011] UKEAT 0050_20_3007.
• Employment Tribunal, London Central: decision promulgated on 15 October 2010. It rejected the claim. No citation was stated in the judgment.