Today's EAT review concerns the case of Prochnicki v Harvey Nichols. It concerns a chef at the well-known fashion chain, allegations of unreasonably long working hours, internal investigations, resignation and lots of other good stuff that we expect in the world of work when there is a dispute.

Case: Sylwester Prochnicki v Harvey Nichols (Dublin) Limited (UD 1685/2010)
Legislation: Unfair Dismissals Acts, 1977 to 2007
Jurisdictions/Subject Matter: Constructive Dismissal, Grievance Procedures, Reasonableness


Facts

The claimant was employed, as a chef, by the respondent company from December 2007 until June 2010. The claimant alleged that he was subjected to poor working conditions and was also required to work long hours without the appropriate breaks. The claimant asserted that these conditions detrimentally affected his health and led to him being absent on sick leave for significant periods of time.

The claimant asserted that he made numerous complaints to the Human Resources Manager (“HRM”) regarding his working conditions. Following his complaints and advice from an occupational health assessment, his working hours were amended and a specific shift pattern was created for the claimant. However, the claimant maintained that despite his complaints, the general working conditions did not improve.

The claimant then requested a transfer to a different department. The HRM informed the claimant that he had not applied through the appropriate procedure and he was requested to do so, but he never did.

The claimant stated that he had received three written warnings from the head chef (“TH”) over both his personal hygiene and food hygiene standards. The claimant alleged that he was not provided with copies of these written warnings. The claimant made a bullying complaint against TH to the HRM. An investigation was initiated into the matter.

On the conclusion of the investigation, the HRM met with the complainant on 30 April to discuss with him the outcomes of the investigation. On 20 May 2010, the findings were confirmed to the claimant in writing. The letter also informed the claimant that he was entitled to appeal this decision. The decision was never appealed.

The claimant was absent from work on sick leave from 17 March 2010 up until his resignation on 3 June 2010. The claimant alleged that he resigned as he felt that the respondent had taken no action with regards his reported instances of bullying and harassment and in addition, there was no improvement to his general working conditions.

Upon receiving the claimant’s resignation letter, the HRM wrote to the claimant asking him to reconsider his decision to resign and invited him to contact her to discuss any issues. On 28 June 2010, the HRM and the claimant met, the HRM stated that claimant indicated that he did not want to discuss the outcome of the investigation or appeal the decision.


Determination

The Tribunal concluded that the claimant would have remained in the employ of the respondent if he had been permitted to transfer. Some of the working conditions that were at issue would have also applied to the role to which he wished to transfer into.

The Tribunal found that the claimant was not entitled to consider himself to be constructively dismissed for the following reasons:

* the respondent had acted in accordance with the grievance procedures;
* the claimant had not acted reasonably by asserting that nothing changed after the investigation as he was absent from work within two weeks of being informed of the findings and therefore had not enough time to come to this conclusion;
* the failure of the claimant to appeal the decision following the investigation was fatal to his case.


Legal Review

In its determination, the Tribunal was heavily influenced by the employer’s adherence to the grievance procedures. In general an employee should invoke the employer’s grievance procedures prior to initiating a claim for constructive unfair dismissal, in order to be in a position to assert that the decision to resign was reasonable in the circumstances.

The claimant in this case was found not to have acted reasonably as he had not fully engaged with the grievance procedure. In deciding not to appeal the decision, the claimant effectively negated any previous conduct that may have entitled him to consider himself to be constructively dismissed.

In constructive dismissal cases the conduct of both parties will be examined in addition with all the circumstances surrounding the resignation, in order to establish whether or not the decision of the employee to resign was a reasonable one. The reasonableness of both the employer and employee’s actions is therefore a significant factor in cases of constructive dismissal.


Conclusion

An employer must have fully developed policies and procedures drawn up in order to deal with all grievances fairly and promptly. In order to defend against constructive dismissal claims, it is important that the Employer acts reasonably. As is evident in this case, unreasonable behaviour by either side may be a deciding issue when the Tribunal examines the issue of whether a constructive dismissal situation exists.

Case Decision:
http://bit.ly/MpS8Rk