When a manager loses it, fast and fair can save the day

Fast and fair action is the key to avoiding claims of constructive dismissal, where employees feel they’ve been unjustly targeted by a manager.

That’s the outcome of a case that’s just been decided after a kitchen worker took the pub group Spirit to an employment tribunal at the end of a stormy employment history.

The case hinged around Mr Assamoi, who had already been moved on within the chain because of bad working relations, but still had difficulties in dealing with his new manager. Matters came to a head in December 2009 when he was suspended pending an investigation into allegations made by his boss.

Luckily for the Spirit Group, the investigation was carried out quickly by two other managers from different pubs in the group, who concluded that the allegations were unfounded. A return to work meeting was held and Mr Assamoi was offered three choices: to sign a new contract and continue working at the same place, to move to a different pub, or to resign. But he refused to sign the contract and resigned, claiming constructive dismissal.

When the case reached the Employment Appeal Tribunal, they upheld the decision of the Tribunal which had found that although Mr Assamoi’s pub manager had damaged the relationship of trust between employer and employee by his actions, the relationship had been restored by the quick and fair action of the other investigating managers.

Jane Dismore Employment law expert Breeze & Wyles Solicitors LLP said: “Constructive dismissal is where an employee resigns because the actions of the employer either alter the contract between them fundamentally in a way that is unacceptable to the employee, or where they make it impossible for the employee to continue working because the relationship of trust has been destroyed. A previous case involving Bournemouth University established that once that relationship has been destroyed, there is nothing the employer can do to remedy the situation, and the employee will have a valid case for unfair dismissal.

“This case does not alter that principle, but it’s encouraging for employers because it shows that another manager can remedy a situation if they are fast and fair, even when a line manager has behaved high-handedly.”

ENDS

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This is not legal advice; it is intended to provide information of general interest about current legal issues.

Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11

Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121

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Warring parents told to face up, not fall out over contact with children

The Courts are toughening up their stance on parental contact, saying it’s in the best interests of children to see both parents, who will have to face up and set aside their differences.

In a move which could see parents being told to turn to counselling or therapy to deal with their attitude – whether it’s based on anger or anxiety - the Court of Appeal has said that the responsibility for achieving the best outcome for a child following separation or divorce lies with the parents themselves, not with the courts or any other agency of the state, however tough it may seem.

Said Olive McCarthy, family lawyer with Breeze & Wyles Solicitors LLP: “The short message is that contact will only be denied as a last resort. Parents cannot shirk their responsibilities towards their children and expect the courts to back them up by denying contact to the other parent.”

The ruling has come following a long court battle in the case of W (Children). The mother and father had lived together for six years, buying a house together and having two children, but the stormy relationship ended when the father had difficulty in controlling his temper, often shouting verbal abuse at the mother.

The mother left the family home in 2008, taking the children with her, and although the father had contact with the children to start with, arrangements soon broke down and despite a court order in place for weekly direct contact, the mother refused him access.

A psychologist then recommended that the father undergo therapy to develop his emotional awareness and to help manage his anger. He did this and made good progress, but the mother said she was too traumatised and found it impossible to cooperate over contact.

When the case first came to trial the judge agreed that the mother’s distress and anxiety was so strong and deep-rooted that it was impossible for her to cooperate with contact arrangements, and so the judge ordered that there should be no direct contact between the father and the children.

But when the father took his case to the Court of Appeal, the judges agreed with him.
In his judgment Lord Justice McFarlane said that the courts must look to two principles in deciding contact disputes. Firstly, that the welfare of the child is paramount and the court is only concerned with the interests of the parents in so far as they bear on the welfare of the child. Secondly, that it is almost always in the interests of a child to have contact with the parent with whom they are not living. On this basis, the judges said, contact should only be denied as a last resort and after the judge has grappled with all the possible alternatives.

The first trial had identified the mother’s refusal to undergo therapy as being the sole barrier to contact with the father and by accepting the mother’s position on this, the inevitable consequence was to deny contact with the father. This was wrong, according to the Court of Appeal, because the judge had failed to grapple with the alternatives, and had denied contact to the father when she should have focussed on getting the mother to undergo therapy to help her cooperate with contact arrangements.

Ms McCarthy added: “This is an important case because it sends out a warning to parents. Lord Justice McFarlane says that the courts will almost always regard it as being in a child’s best interests to have a meaningful relationship with both parents. The clear message is that parents must set aside their differences and work out ways to achieve this. If there are obstacles they must find a way to overcome them – whether that’s simply backing down, or through therapy, counselling or mediation to help them do so.”

ENDS

W (Children) [2012] EWCA Civ 999

Children Act 1989

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.