Constructive unfair dismissal

Thackeray v Acequip EAT/0396/03/MAA 20 November 2003 unreported

At a disciplinary hearing the employee admitted that the procedures he had followed were otherwise than laid down by the employer. He alleged that in performing his duties in the manner in which he had, he had been following procedures as instructed by his line manager, Mr Dymock. The disciplinary hearing found that the employee had failed to follow correct invoicing and authorisation procedures and he was issued with a final warning which was to remain on his file for 12 months. His appeal was dismissed and the final warning remained on his file. The employee then wrote a detailed letter to Mr Dymock raising nine specific issues indicating his view that the disciplinary action taken against him, together with other management action, had undermined his position so that there was a total breakdown of mutual trust and confidence. The employee regarded Mr Dymock’s response as unsatisfactory and as making the breakdown of trust and confidence more blatant than ever. He said he had no option but to resign, which he did. Neither the member of the employer’s staff who conducted the disciplinary hearing or the member who conducted the appeal hearing asked Mr Dymock whether he had given the employee any instructions that conflicted with the written instructions. He was disciplined and his appeal rejected without Mr Dymock having been asked to comment on the applicant’s explanation as to his departure from the written instructions. The employment tribunal found that although failure to make enquiries of the applicant’s line manager could amount to a fundamental breach of contract justifying a resignation amounting to constructive dismissal, this did not apply in this case because the employee did not know that the employer had made no enquiries of Mr Dymock. What he knew was that his explanation had not been accepted and he had been issued with the final written warning, which itself did not amount to a fundamental breach of contract. In allowing the employee’s appeal the EAT held that, in imposing the sanction of a final warning without investigating the employee’s claim that he had merely been following the instructions of his line manager, the employer breached its implied duty of trust and confidence. The employment tribunal therefore fell into error when it concluded that the employee could not in those circumstances claim to have been constructively dismissed. A final written warning is an extremely serious matter. Such a warning is given for conduct which just stops short of that justifying dismissal. It is often the penalty imposed when a dismissal is an obvious and permissible sanction but, for reasons personal to the employee, is not imposed. It involves a very real penalty in that there is a risk that should the employee commit any other offence within the period of a year, however minor it may seem to be on its own, it may justifiably be taken to give grounds for dismissal. It may be regarded by an employee as a statement that the employer has in mind dismissal and just pulls back from the brink. The employment tribunal had properly concluded that the appellant had in fact been dismissed, and there was no reason put forward within the meaning of s98 of the Employment Rights Act 1996 for that dismissal, nor any basis suggested as to how it could be fair.