Restrictive Covenants

Hello again and welcome back to our case of the week, where we look at a claim for unfair constructive dismissal. Those that missed last week’s case regarding a disability and reasonable adjustments claim, can find it here.

This week’s case is Mr M Clifton v Maximus UK Services Ltd. The Claimant was employed as a business manager by the Respondent who provides employment and skills support for disabled people returning to the job market. The Claimant led a team of 6-10 people who dealt with clients and he had performance targets to meet.

In or around September 2022, the Respondent received a grievance from a member of the Claimant’s team (MG) complaining of a lack of support and treatment amounting to disability discrimination. MG has diagnoses of mental health issues and Multiple Sclerosis. Despite the complaint being received in or around September 2022, the Respondent did not investigate it until April 2023, nor did they interview the Claimant as part of the investigation. They also did not tell the Claimant of the complaints made against him until August 2023, which was after they concluded their investigation in July 2023! The Respondent’s conclusion was that a further investigation into the concerns raised by the witnesses was required and formal disciplinary action of the Claimant for bullying and harassment of two members of his team.

On 5th September 2023, the Claimant filed a grievance concerning the procedural failings and conduct of the investigation by the Respondent and later resigned with immediate effect on 20th October 2023.

The Claimant brought a claim for constructive unfair dismissal for breach of the implied term of mutual trust and confidence. There is an implied term in a contract of employment that an employer will not, without reasonable cause, conduct itself in a manner calculated or likely to destroy or serious damage the relationship of trust and confidence between employer and employee – Malik v BCCI [1997].

The issues for the Employment Tribunal to decide were:

  1. Did the Respondent investigate the complaints against the Claimant in good time?
  2. Did the investigating officer invite the Claimant directly to a disciplinary meeting without an investigatory meeting taking place, breaching their own company disciplinary and grievance policy?
  3. Did the Respondent invite the Claimant to a disciplinary meeting without detailing the alleged misconduct?
  4. Did the Respondent breach their own company policy by failing to provide notes of the investigation meetings within the specified time frame?
  5. Did the Respondent breach their own company policy by failing to provide notes of the investigation meetings within the specified time frame?

For the Tribunal to be satisfied whether a breach of the implied term had occurred, it had to decide whether the Respondent behaved in a way likely to destroy or seriously damage the trust and confidence between the Claimant and Respondent and whether it had a reasonable and proper cause for their actions.

This is a challenging test and the essence of constructive dismissal is repudiation by the employer, which is accepted by the employee i.e. did the Claimant resign in response to the Respondent’s breach of contract?

ET Findings

The ET found that the conduct of the grievances and the investigation by the Respondent were not without fault. They failed to investigate them in good time which may disadvantage a victim, who expects to have their grievance dealt with promptly and in line with their policies. The delay can also disadvantage the accused as they are at greater risk if allegations are put to them so long after the event their capacity to recall such events and defend themselves is affected.

However, it was the finding of the ET that the Claimant in this case was not disadvantaged at all as he was able to deal with the allegations put to him.

The ET accepted the Respondent’s submission that the real reason for the Claimant’s resignation, was that he expected he would be dismissed, so resigned rather than face dismissal. The ET stated, the Claimant failed to give any evidence of unfair or repudiatory conduct and agreed the Claimant would certainly have been dismissed and that dismissal would most likely be found to be fair.

Takeaway Points

Reference to a company’s disciplinary and grievance policies in a contract of employment often expressly state that these policies do not form part of the contract of employment. However, an employee has the right to expect that such policies and the ACAS code will be followed.

The ACAS code of practice require that an employee who is the subject of disciplinary procedures, should be given sufficient information about the alleged misconduct to enable them to prepare to answer the case against them at a disciplinary hearing.

Although this case is an example of an employee who was not disadvantaged by the failings of the Respondent during the disciplinary process, it is best practice for employers to deal with disciplinary and grievance matters promptly, under the company procedure and in line with their policies, to resolve the matter without unreasonable delay and avoid the time and cost incurred in a potential claim such as this one.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.