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If an employer upholds an employee’s grievance can this prevent that employee relying on the treatment as a breach of mutual trust and confidence entitling him to resign and claim constructive dismissal?
In Assamoi v Spirit Pub Company Mr Assamoi raised a grievance about how he had been treated by his manager and soon after resigned. The grievance was upheld by two senior managers but Mr Assamoi refused to return to work even if the manager apologised.
Previous case law makes it clear that an actual breach of contract cannot be cured. However, the Employment Appeal Tribunal held that the manager’s actions were “likely to damage” the relationship of trust and confidence but did not meet the test of being “likely to destroy or seriously damage” the relationship. In upholding the grievance the managers had prevented the situation from escalating and a fundamental breach occurring. However, what an offer amends can’t do, is remedy the breach once it has already occurred.
When entering into a settlement agreement, it is a requirement for the employee to get independent legal advice on the terms and effect of the agreement.
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