Only those with skin as thick as a rhino are unabashed at being reprimanded in public. But if a boss gives an employee a dressing down in front of colleagues, does it mean, that member of staff can resign and then expect to win a constructive unfair dismissal claim against the company, by convincing a tribunal he or she was forced to resign?
Yes quite possibly, but there is no clear answer to this. A tribunal might regard the upbraiding as so humiliating it caused a complete breakdown in trust and confidence and a repudiatory breach of contract. Employers make no mention of trust and confidence in employment contracts – but it is something the law regards as implied in all employment contracts. The implied term of trust and confidence obliges both the employer and staff to act reasonably and avoid undermining the relationship.
Sometimes tribunals side with employers – even ones which have misbehaved. In one case recently an employee started moaning he had only been given an ordinary Audi and not a convertible one. Things turned even sourer when the car malfunctioned and the employee attempted to get his car fixed directly with the manufacturer instead of through his company. Incensed, his manager, sent him an email reprimanding him for his lack of cooperation about getting the car repaired. He copied the email to other managers at the company and also circulated it to some Audi representatives.
The employee lost his claim for constructive dismissal. The appeal tribunal decided that even though the company had not behaved very well – its transgressions were just peccadilloes and not enough to destroy trust and confidence.
In another case, the appeals tribunal threw out a constructive dismissal claim – but again not because of any saintliness on the part of the employer. The employer won the appeal because the employee ‘s own conduct had to be considered. The tribunal had heard he had himself breached the implied term of trust and confidence with intoxication, sexual banter and lying.
It is of course wiser not to end up at a tribunal facing a constructive dismissal claim. Keep performance reviews and disciplinary actions strictly confidential and do not undermine staff in front of their colleagues, however tempting.
Peta Fluendy is employment law consultant at Sutton based De Brett and Co
http://www.debrettlaw.co.uk/
employmentlawconsultant@gmx.com
No Comments on this post