Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11

The EAT held in this case that although an employer cannot cure a breach of trust and confidence it could prevent a situation escalating into a breach of trust and confidence by offering the employee a transfer after believing his version of events.

Mr Assamoi worked in the kitchens of one of Spirit’s pubs between 1993 and 2009.  He had difficulties with his manager and he was given a transfer to another pub in 2008.  His relationship with his new manager there was also fraught. There was a dispute about signing new contracts and understaffing on a busy day. Mr Assamoi was accused of being absent without leave and not attending an emergency meeting but in fact he had been on pre‑arranged leave on those days.  Although he had been suspended, after an investigation he was told no action would be taken and reference to the suspension would be removed from his record.  Mr Assamoi, on his return to work, wanted an apology from Mr Cooper, his manager, but this was not forthcoming. Spirit offered him a transfer to another pub if he signed a new contract but he refused.

At a grievance meeting Mr Assamoi said he would not return to work even if Mr Cooper apologised and he brought an unfair dismissal claim. He was unsuccessful and on appeal he claimed that Mr Cooper’s breaches of trust and confidence could not have been cured by the later actions of the investigating team. This appeal was also dismissed.  Although Mr Cooper’s actions were likely to damage the relationship of trust and confidence, they did not meet the test of being “likely to destroy or seriously damage” the relationship.  The way that the other managers had dealt with the matter prevented it escalating into a position that would have justified him resigning.

The Tribunal also found that the new contract was not a demotion and involved no substantive change to Mr Assamoi’s terms.  The case was distinguished from Buckland v Bournemouth University where once a repudiatory breach had happened it could not be cured and it remained open to the wronged employee to resign and claim constructive dismissal.

Key point:  Trust and confidence is rarely destroyed or seriously damaged by a single act.  An offer of suitable amends or olive branch may improve an employer’s position and pull it back from the brink because the employee then has to either accept the breach and resign or be deemed to affirm the contract.