This case provides a useful escape route for an employer faced with an employee who has a genuine grievance.
In a previous case from 2010, Buckland v Bournemouth University, the Court of Appeal held that once trust and confidence between an employer and employer has been destroyed nothing could be done to repair it. When reaching their decisions, Tribunals must 'ignore the olive branch' offered by an employer seeking to make amends. Therefore, if an employee has been seriously wronged, there is nothing the employer can do to rectify the situation.
This case confirms that while a destroyed relationship is beyond repair, a damaged one is not.
Mr Assamoi worked in a pub kitchen. He had a history of difficult relations with management. The pub was understaffed on one occasion, and customers were turned away. Mr Cooper, his manager, called an out of hours meeting two days later. None of the kitchen staff turned up. Cooper suspended all of them for being absent without leave.
In fact, Mr Assamoi had been on pre arranged leave on both the day of the understaffing and the day of the out of hours meeting. The managers investigating the absence realised this and said that no action would be taken and the suspension would not appear on his record.
However, this was not enough for Mr Assamoi, who demanded an apology from Mr Cooper. The apology was not forthcoming. However, Mr Assamoi was offered a transfer to another pub. He refused. Instead, he resigned, and claimed constructive dismissal.
The Tribunal said that the actions of Mr Cooper, in suspending Mr Assamoi, convening a meeting while he was on holiday, and refusing to apologise, were actions likely to damage the relationship of trust and confidence. However, they also said that the investigating managers prevented any breach of the duty of trust and confidence from actually occurring. Accordingly, Mr Assamoi's claim was dismissed.
He appealed to the Employment Appeal Tribunal on the basis that Buckland had not been followed – he argued that once the relationship was damaged, the actions of the investigating managers were irrelevant.
The EAT said 'likely to damage' does not equal 'likely to destroy or seriously damage' the relationship. The breach was prevented by the fair minded actions of the managers. Accordingly, the Tribunal's decision had been correct and Mr Assamoi had no grounds on which to claim constructive dismissal.
While this may seem a bit of an academic distinction, it is very helpful to employers.
Breach of trust and confidence often occurs following a series of small incidents, with a "final straw" being critical. In the absence of an obvious, significant breach, it is often difficult for employers, employees and Tribunals to decide the exact point at which the relationship has broken down. If an employer is trying to make amends, the Tribunal may have sympathy and find that that there has not yet been a last straw which broke the relationship's back. Also, if the employee is persuaded to give the employer another chance following a conciliatory gesture, they could be seen to have waived the breach and the employer will have won a reprieve.
Tactically, it may therefore seem sensible to apologise to an employee who clearly has a legitimate grievance, in order to head off a constructive dismissal. Indeed, a failure to apologise may well in itself be the final straw.
However, there is a risk that if the employee manages to establish that the relationship is already irreparably damaged, the apology could be seen as an admission of liability. If it's clear that the employee has been mistreated and they already have a claim for constructive dismissal, it may not be worth trying to repair it. If the employee in these circumstances cannot be persuaded to stay, and you know that they have a strong claim against you, it could be time to discuss settlement terms on a without prejudice basis.