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Clandestine Rendezvous Leads to Unfair Constructive Dismissal Finding

Openness and transparency are key to promoting a healthy working environment. An Employment Tribunal (ET) made that point in taking a very dim view of a clandestine rendezvous between a salesman and his line manager in a shopping centre car park (Khandelwal v Virgin Media Ltd).

The salesman was suspended pending an investigation by his employer concerning certain dealings by his team with customers. His line manager, who knew about those dealings and had in the past facilitated them, telephoned him about a meeting that was to take place later that day. The line manager was to preside as chair of that meeting. Scared that he would lose his job, the salesman panicked and sought the secret rendezvous, to which the line manager agreed.

As a result of what the line manager told him in the car park, the salesman formed a reasonable and genuine belief that, if he attended the meeting, he was likely to be dismissed. The line manager informed him that resignation would be in his best interests in that he would retain certain employment benefits and receive a good reference. Trusting the line manager, who he believed had done him a favour, the salesman promptly handed in his notice.

In upholding his constructive unfair dismissal complaint, the ET noted that the line manager did not tell him that the meeting was only investigatory in nature and that no disciplinary proceedings had even been commenced against him. He did not tell him that there was in fact no rush to resign and that he had nothing to lose were he to attend the meeting. The employer's failure to clearly communicate to him the purpose of the meeting only added to his confusion.

The ET had little doubt that, when he attended the rendezvous, the line manager was serving his own interests to be rid of the salesman before he said or did anything that might compromise his own position. Following his resignation, the salesman was deeply upset to discover that the line manager and other members of his team were in line to receive redundancy payments.

The line manager, the ET found, had no business attending the rendezvous. It was wholly improper of him to discuss details of the investigation just a few hours before a meeting that he was to chair. Some of the information he gave to the salesman was plainly false. His advice that it would be in the salesman's best interests to resign amplified the pressure the salesman was under.

Overall, the ET found that the rendezvous amounted to conduct calculated or likely to breach the term of trust and confidence implied into the salesman's employment contract. The resulting breach of that contract was repudiatory. Had it been necessary to do so, the ET noted that it would also have found that there was no reasonable and proper cause for either the investigation or his suspension. If not agreed, the amount of his compensation would be assessed at a further hearing.

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