A long serving manager went on a pre-booked holiday to attend his daughter’s wedding. He had not made proper arrangements for cover so we were embarrassed by a potentially major customer service failure. A decision was taken to issue him with a written warning upon his return, in relation to the failure to arrange cover. He was handed the letter which started by saying “This is a written warning…”. He argued this warning twice, firstly in a row on the day he read the letter and again a fortnight or so later when he expressed dissatisfaction that the warning would stand. As part of his arguments, the Claimant stated he had acted in accordance with usual practice when arranging cover, and no process had been followed when issuing the warning. A week later he spoke to this boss to say he was resigning, collected his pay packet, returned his keys and left. He then sent an email to the boss, repeating his explanation about cover, complaining that he had been given a warning without any process being followed and explaining that he felt he had no choice to resign as he felt he had been constructively dismissed.
We emailed him to say, he should withdraw his resignation and attend a grievance meeting (if it was his wish to raise a grievance). Following advice, we suggested that the previous letter (the one which started “This is a written warning…”) was not intended to be a formal warning and was not part of the disciplinary process.
Are we now safe from a Tribunal claim?
Peter replies:
The letter sounds like a written warning to me. On that basis such a penalty looks wholly disproportionate to the misconduct or performance he may have been guilty of, had a proper procedure been followed. The bigger problem is that no process has been followed at all. This failure to follow any process (either your own process or the ACAS Code) is likely to be held to be a breach of the implied term of trust and confidence, entitling him to resign in response to that breach.
It is a well established principle that a Claimant should not delay in accepting a breach and resigning in response to it. You can try to argue that his delay of 3 weeks between the warning and his resignation was too long, and so he had waived his right to accept the breach and make a claim. A Tribunal may well not accept this and find that he had not waited too long. He complained quickly about your conduct, which took you around a fortnight to respond to, and had walked out and sent an email which expressly stated he considered he had been constructively dismissed.
You might be able to get a reduction to the compensatory award, on the basis that he was guilty of some contributory conduct towards his dismissal, however he might get an uplift of up to 25% on the basis that the Club failed to comply with the ACAS Code of Practice.
A proper procedure must be followed with all disciplinary sanctions (not just dismissal) and that procedure must include a meeting and offering a right of appeal. Appeals can be used as, either a review of the original decision, or a complete rehearing, which is beneficial if there have been any flaws in the disciplinary process. This is the way you should have gone, instead of trying to simply back-track on the previous letter.
You can have several options:
- Pray that he gets another job and forgets about it, which is unlikely
- Wait for the Early Conciliation approach from ACAS and offer to settle quickly
- Approach ACAS to let them arrange conciliation and facilitate a deal
- Approach him on a without prejudice basis, to seek to arrange a Settlement Agreement
I would not rely on the first option. I would suggest seeking professional employment law advice in future as unfortunately, your actions over this matter are likely to be costly.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
