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Not to be dismissed

Employers need to be aware that events which could lead to a constructive dismissal claim could still be used to succeed in a claim brought some time later.

In the case of Abbey National v Robinson, the applicant made a formal complaint about her manager after she had been bullied by him for about 12 months.

The manager was disciplined by Abbey National and the applicant was reassured that he would be transferred to another role so that she would not have to work with him.

However, Abbey National went back on its word and at a meeting in August 1997 it indicated that the particular manager would not be transferred after all and instead offered Miss Robinson alternative employment in the company. Miss Robinson declined its offer.

However, she did not resign until July 1998 and then applied to an employment tribunal, claiming constructive dismissal. She was successful in this claim, with the tribunal deciding that Miss Robinson had resigned due to the cumulative effect of Abbey National&#39s treatment and conduct towards her in the months after the August 1997 meeting.

Abbey National appealed unsuccessfully against the decision, arguing that the tribunal had misdirected itself by disregarding the fact that the resignation took place almost a year after the relevant breach of contract – the failure to transfer the manager in 1997.

The employment appeal tribunal held that the tribunal was correct to consider the entire period from the time of the breach until the resignation. The breakdown in trust and confidence could be established by a course of conduct and not simply by a single event.

The importance of following procedure

In the case of John Lewis plc v Coyne, Miss Coyne had been summarily dismissed when the company discovered that she had been using its phone system for personal calls in breach of company policy. Miss Coyne had made two or three personals calls of about seven minutes in length each week. The total cost of this breach by the employee for the previous year had been £37.76.

John Lewis considered that this was primarily dishonest and constituted stealing. Miss Coyne complained to an employment tribunal that she had been unfairly dismissed. The tribunal found that John Lewis had failed to carry out a fair disciplinary procedure.

Miss Coyne had been interviewed without warning despite the fact that she had a clean disciplinary record. The whole disciplinary process took only a matter of minutes, resulting in her dismissal.

John Lewis appealed against the decision of the employment tribunal which had considered that Miss Coyne had been unf- airly dismissed. The employment tribunal dismissed the employer&#39s appeal, stating that, based on the facts, the tribunal&#39s decision could not be faulted.

John Lewis had treated Miss Coyne&#39s conduct as automatic- ally dishonest without making any enquiries. The employment appeal tribunal, however, agreed that although making personal calls in breach of the company&#39s policy would warrant disciplinary action that may lead to dismissal, it could not be assumed that there was a dishonest intention behind it.

The employment appeal tribunal said John Lewis should have conducted a proper investigation and, without that, the disciplinary procedure was flawed and found that Miss Coyne was in fact unfairly dismissed.

This is a lesson to be learned by all employers. Even if you have a particular company policy in place, a full investigation should be carried out prior to instituting the disciplinary procedure and/or even dismissing the employee for breach of that policy.

Employment rights are increasing at a rapid pace in the UK. A good employer works with the new legislation, a bad employer suffers with it.


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