Working Men’s Club and Institute Union Limited v Thomas Balls [
Protected conversations are much discussed. If they turn out to work here is an example where one might have been used. The phenomenon of the “new broom” creating workplace mayhem is familiar. Enthusiastic managers, determined to put things to rights, frequently come across existing employees whose ways do not fit their vision. A bull-in-the-china-shop approach can end up in court.
In Working Men’s Club and Institute Union Limited v Thomas Balls [UKEAT/0119/11/LA] the employer was a national organisation of working men’s clubs. It ran a convalescent home in Yorkshire, and the claimant was the manager of the home. He had been in the post since 2006. In 2009 there were management changes and the claimant acquired a new line manage who quickly formed the view that something had to be done at the home, which was making losses.
The first the claimant heard of the problem was when he returned from holiday to be told that he was suspended on full pay, and that a disciplinary investigation would take place. The letter handed to the employee at the meeting was a disastrous composition. First, it was dated the previous day, secondly it was handed to the claimant at the meeting recording a conversation that had not yet taken place, and thirdly, and most importantly, the descriptions of the various matters alleged were exaggerations and gave rise to a clear suspicion of dishonesty, which the tribunal later found to be unreasonable and excessive.
One of the responses of the claimant was that his line manager, whom he reasonably believed was investigating his suspected dishonesty, had in the past given him instructions to ‘exaggerate’ his travelling expenses.
He complained that it was inappropriate for her to sit in judgment on his honesty, and asked her to stand down, something she did not do.
There was also a communication failure between the line manager and her manager who had, it appeared, wholly different perspectives on the nature of the investigation.
Things only got worse when the line manager insisted on an investigation meeting on little or no notice.
The claimant resigned and claimed he had been constructively dismissed. The Newcastle employment tribunal agreed. The employers appealed arguing that the real reason that the claimant had resigned was because the line manager had refused to stand down when challenged and that did not amount to a sufficiently serious breach of the relationship of trust and confidence to justify a constructive dismissal.
The matter proceeded to the Employment Appeal Tribunal where the appeal was rejected. The EAT accepted that the tribunal had been entitled to take all of the claimant’s evidence as a whole and find that the resignation was not limited to the line manager’s refusal to stand down, but was because of the entire manner in which the investigation had been initiated and conducted. The crucial legal point was that bringing a disciplinary investigation unreasonably, quite irrespective of the eventual finding, is capable of constituting a breach of the trust and confidence duty.
Whilst the EAT acknowledged that an employer may often act reasonably in investigating allegations of misconduct, which turn out to be groundless, the question of reasonableness is one of fact for a tribunal to determine, and this tribunal had every right to have found that the manner in which this investigation had been initiated and conducted was unreasonable.
The most serious mistake was to decide to proceed to a formal investigation on very little evidence and to mislead and exaggerate the allegations in the letter. An informal conversation (protected or not) was called for first.
First published in The Grapevine Magazine
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