One of our long serving employees was asked by a director to go into his own manager’s emails to find something out whilst his manager was on holiday. He found what he was looking for but also saw an email titled with his name. Curiosity overcame him and he looked at it. The email to another manager said that the boss wanted to get rid of him and he was doing his best to hassle him out but he was ‘a bit slow on the uptake’ so it was taking longer than was hoped. The employee printed it and brought it to me to ask how to raise a grievance. He had been concerned about the previous behaviour of his boss but had not wanted to cause a fuss. I told him that we ought to be disciplining him for breach of our email privacy policies.
Forget the email and discipline, you could be in big trouble. He had a legitimate reason for accessing his manager’s emails and he now has a very solid case for constructive dismissal as the way you reacted probably means that a Tribunal, would in the circumstances, be understanding if he fails to raise a grievance. You have just made a bad situation worse.
Constructive dismissal means that an employee resigns because the actions of the employer have caused a fundamental or repudiatory breach of the employment contract. It is not dissimilar to gross misconduct and gives the employee the choice of giving notice or leaving immediately. It is insufficient to have acted unreasonably (email detailing attempts to get rid of the employee) the employer must have broken the contract by undermining the implied contract of trust and confidence.
It is normally quite hard for employees to win but this case would be the exception. You have three obvious choices:
- Wait and see if he leaves and makes a claim, then seek to settle it.
- Wait for the grievance and deal with it properly which would probably involve a fulsome apology, strong reassurances and discipline of the manager, his boss.
- Approach him about leaving and signing a Settlement Agreement recognising that you are going to have to be very generous.
I would approach him now and apologise for your inappropriate reaction and ask what it is that he would like to happen? Give him a bit of time to think about it. I would leave the choice to him but take great pains to point out that he should feel free to use the grievance procedure and that the matter will be properly handled including the right to appeal if he is not satisfied with the first decision.
If he goes to Tribunal he will still win but the amount of compensation due to him may be reduced for the fact that you attempted to resolve the case as you have tried to put things right procedurally and substantively.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way. Before you take any action make sure that you know what you are doing, or call us for specific advice.
