Case roundup

This
week’s Case roundup

Don’t
delay in walking out
Smith v United Assurance Employee Services Limited, EAT All ER (D) 74 17
April 2002

Smith
was employed as a sales manager with a weekly target of 10 appointments.
Smith’s employment was taken over by United Assurance. In February 2000, it
decided unilaterally to increase his appointments target to 15 per week. He
complained that the requirement was unreasonable.

He
carried on working to his previous target of 10 appointments per week for the
next two months until 3 June 2000, during which period he also took two weeks’
leave.

On
3 June 2000 Smith resigned, alleging constructive dismissal. The employment
tribunal rejected his complaint on the basis that while the increase in weekly
appointments was found to be a fundamental breach of his terms and conditions
of employment, since he had taken no steps to treat the contract as at an end
and had carried on working for two months, he had accepted the breach and
waived his right to claim constructive dismissal. He appealed.

Smith’s
appeal was unsuccessful. His failure to protest or invoke a grievance procedure
or request the assistance of the trade union demonstrated that Smith had failed
to take any steps to treat the contract as at an end. Consequently, Smith was
deemed to have affirmed his contract.

Jumping
to conclusions
Safeway Stores v Sim, Scottish Employment Appeal Tribunal EAT website
10.8.02, 30 August 2001

Lorraine
Sim was employed by Safeway. She was involved in an altercation with her
manager, Urquhart. Both provided a conflicting account as to what happened, and
Sim alleged she had been assaulted and restrained by Urquhart. Following the
incident, Sim went home without authorisation.

Another
manager carried out an investigation, and concluded that Sim had made false
allegations. He wrote to Sim stating that no action would be taken against
Urquhart and said on her return to work she would be called to a disciplinary
hearing "relating to false allegations made by yourself against your store
manager and leaving the store without authorisation".

Sim,
who had not returned to work since the incident, was by this time suffering
from depression and subsequently wrote a letter of resignation, in which she
denied making false allegations. Sim then brought a tribunal complaint of
constructive dismissal.

The
tribunal found in Sim’s favour. It decided that Safeway’s letter inviting Sim
to attend a disciplinary hearing, which referred to ‘false allegations’, could
be interpreted to mean that she had already been found guilty of the alleged
misconduct. This constituted a fundamental breach of contract going to the root
of the employment relationship and therefore Sim was entitled to resign and
claim constructive dismissal.

Furthermore,
as Sim was already suffering depression, Safeway should have acted more
sensitively in conveying the outcome of the investigation. Safeway’s appeal
against the decision was unsuccessful.

By
Eversheds tel: 020-7919 4500

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