An employee will be constructively dismissed if their employer fundamentally breaches their contract of employment (e.g. by acting in a way which is likely to seriously damage trust and confidence) and the employee resigns in response.  In 2010, the Court of Appeal held in the case of Bournemouth University v Buckland that, if the employer fundamentally breaches an employee’s contract, it cannot subsequently “cure” the breach.  In the recent case of Assamoi v Spirit Pub Company (Services) Ltd, “A” argued before the EAT that in dismissing his claim for constructive dismissal, the Tribunal had ignored the finding in Bournemouth that repudiatory breaches by an employer cannot be cured.  

A worked in the kitchens of the Spirit Pub company.  During 2005-2009, there had been a number of incidents which had either led to disciplinary action being taken against A or grievances brought by A against his employer.  Matters came to a head in December 2009, after which A resigned and claimed constructive unfair dismissal.  The Tribunal found that the incidents during 2005-2009 were too long ago to constitute part of a continuing state of affairs and that, by continuing to work, A affirmed the contract.  However, it went on to find that the behaviour of A’s manager in December 2009, in requiring A’s attendance at a meeting during his holiday, asserting he was absent without permission when he had himself sanctioned A’s absence, and thereafter refusing to apologise, were acts likely to damage a relationship of trust and confidence between himself, as manager, and A.

Despite this finding, the Tribunal held A had not been constructively dismissed.  The senior manager who investigated the December 2009 incident accepted A’s account of events, stated that no further action would be taken, and offered A a transfer to another pub under a different manager.  A complained to the EAT that the Tribunal had erred in finding that this vindication of him by senior management “cured” his manager’s earlier breaches, and that this was inconsistent with the Court of Appeal’s decision in Bournemouth.  The EAT, however, rejected this argument.  In Bournemouth there had been a repudiatory breach of contract and, as such, no subsequent actions could cure it.  In contrast, in Assamoi, the Tribunal had not found that there had been any repudiatory breach of contract.  Although A’s manager had behaved badly, his behaviour was not so serious as to justify A leaving and the fair minded way in which the investigatory meeting proceeded was such that it prevented the matter escalating into a state of affairs that would have justified A leaving and claiming he was constructively dismissed.

Impact for employers

  • The case of Assamoi does not change the position that if an employer commits a repudiatory breach of an employee’s contract of employment, the employer cannot then “cure” the breach by its subsequent actions.
  • Assamoi, however, is a reminder to employers that it is possible to prevent bad behaviour by a manager escalating into a repudiatory breach of contract by taking steps after the bad behaviour to deal with matters fairly and promptly.