Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The facts in Assamoi v Spirit Pub Company (Services) Ltd

Mr Assamoi, the Claimant, commenced employment with Spirit Pub Company (Services) Ltd (“the Respondent”), a company which runs public houses in the UK, in 1993. He was employed at the time of his resignation in 2010 as a head chef.

The Claimant had a relatively turbulent employment history at the Respondent. He was disciplined a number of times for a variety of indiscretions and moved to a new public house (“The Paxton Head”) in March 2008. In February 2009 Mr Cooper took over management of The Paxton Head.  Shortly after Mr Cooper’s joining the Respondent there was a realignment of job positions across the whole of the Respondent’s organisation, a result of a series of mergers in 2008. This entailed a new contract offer to the Claimant – an offer which he refused to sign as he believed that he would be working less hours (and being paid less) in consequence.

From 27 November 2009 to 10 December 2009 the Claimant took annual heave. Mr Cooper had previously agreed to the Claimant taking annual leave at this time if the other two kitchen staff worked all the necessary shifts to cover the Claimant’s absence. On 7 December 2009 Mr Cooper was alerted to the fact that service from the kitchen was extremely slow. Upon investigating this he found that only one member of the kitchen staff was working. Mr Cooper was angered by this and told the Claimant and the other two members of the kitchen staff to attend a meeting on 8 December 2009 to discuss the situation. The Claimant was on this date absent on holiday and none of the members of staff attended the meeting on 8 December 2009. All of the members of staff were suspended. An investigation followed and the Claimant was exonerated but Mr Cooper failed to apologise. Further, the Respondent stated that the Claimant must sign his new contract or resign. The Claimant refused this and did in fact refuse to return to work. He did in fact resign from his employment on 29 December 2009. He subsequently complained of unfair constructive dismissal to the Employment Tribunal in 2010 and an Employment Tribunal hearing was held in September 2010. The Employment Tribunal concluded that although Mr Cooper had acted in such a manner that was likely to destroy mutual trust and confidence between the parties, that nonetheless there had not been a fundamental breach of contract on the part of the Respondent and, even if there had, that the Respondent’s actions in the investigation cured any such breach. The Claimant appealed on seven grounds, the most substantive one being that an error of law had occurred in the Employment Tribunal failing to consider the case of Bournemouth University v Buckland.

The law relating to constructive dismissal & whether there has been a fundamental breach of contract

Constructive dismissal occurs when an employee resigns and can show that they were entitled to do so by reason of the employer’s conduct. Section 95(1)(1)(c) Employment Rights Act 1996 embodies this right and entitles the employee to resign with or without notice. However, the important point is whether in the circumstances the employee is entitled to resign because of the employer’s conduct.

An employee’s entitlement to resign is usually measured utilising one or the other of two tests:

  1. The traditional (express) contract test
  2. The breach of the implied term of mutual trust and confidence test

In order for an employee to succeed in demonstrating that they were entitled to resign by using the traditional test they must show that their employer was either guilty of conduct which was a significant breach of the contract of employment (and went to the root of the contract) or the employer was guilty of conduct which showed that they no longer intended to be bound by one or more of the essential terms of the contract. Whether the employer has breached an “essential” term of the contract depends upon what contract term they’ve breached and whether (subjectively and objectively) this term could be deemed “essential”. Terms which are normally deemed to be essential include working hours, workplace location, and remuneration.

The second “test” examines whether the employer has acted in such a way as to breach the implied term of mutual trust and confidence which previously existed between the parties. The breach of the implied term must be serious to entitle the employee to resign.

Generally, the necessary elements of a claim for constructive dismissal are as follows:

  1. A repudiatory breach on the part of the employer
  2. Which has been accepted by the employee as terminating the contract (their resignation); and
  3. Which is one reason for the resignation (normally the significant one); and
  4. The employee hasn’t taken too long to accept the breach

The Employment Appeal Tribunal’s judgment in Assamoi v Spirit Pub Company (Services) Ltd

The Employment Appeal Tribunal rejected the Claimant’s appeal. It found that the only substantive ground on which the Claimant was appealing was ground 1 – that of the error of law in failing to consider Bournemouth University v Buckland. The EAT found that the ET had addressed the necessary issues and that it had considered that there had not been a sufficiently serious breach of contract on the part of Mr Cooper to entitle the Claimant to resign. The EAT therefore found that the issue of whether the Respondent had “cured” the breach of contract was irrelevant.

Our specialist employment lawyers’ views on Assamoi v Spirit Pub Company (Services) Ltd

Claimants in constructive dismissal cases clearly have to be careful that the actions of their employer which they believe has breached their contract of employment are sufficiently serious to entitle them to resign. Whether a breach is sufficiently serious is both a subjective and an objective test. Claimant’s should therefore note that an action which appears to them to be extremely serious may not be interpreted as such by the Employment Tribunal.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Tagged with →  

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

172 Reviews

Anonymous

I had an employment issue which required legal advice. Chris was very supportive and knowledgeable, resulting in an optimum resolution in my favour. Would definitely recommend.

Posted 5 days ago

David M

Very professional and first-rate advice. I would use again. With thanks,

Posted 5 days ago

Anonymous

Got the job done swiftly without going too much in to detail.

Posted 6 days ago

Derek W

Redmans dealt with my case very efficiently and I was happy with the outcome.

Posted 1 week ago

Anonymous

Timely professional advice!

Posted 1 week ago

Anonymous

Very good service

Posted 2 weeks ago

Anonymous

I was in contact with Chris and then worked with Caroline on an employment matter. I was very pleased with the service and professionalism throughout, and came away with satisfied with the outcome. Would happily recommend.

Posted 2 weeks ago

Nikki

Received advice re employment law. Chris was very helpful and advised accordingly. Would happily recommend them and if ever I need help again, will not think twice before using them.

Posted 2 weeks ago

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 months ago

Anonymous

The legal advice was clear and helpful.

Posted 2 months ago

Davinder P

Good Service

Posted 2 months ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 months ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 2 months ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 2 months ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 2 months ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 2 months ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 2 months ago

Anonymous

Good and quick service

Posted 2 months ago

Ricky D

Very satisfying to be assured of such attention and professionalism.

Posted 2 months ago

Anonymous

Excellent service - thankyou

Posted 2 months ago

Anonymous

Efficient, timely and friendly support and advice

Posted 2 months ago