Firm wins remittal of constructive dismissal claim from clerk
By John Hyde
The Employment Appeal Tribunal has remitted a case involving a law firm employee who claimed to have been bullied and harassed.
The claimant, referred to as Mr Z. Habib, had been a legal accounts clerk at the Southall office of west London firm Asghar & Co Solicitors, when he claimed to have been constructively dismissed in 2014.
But in Asghar & Co Solicitors v Habib, the appeal said the employment tribunal had failed to take account of Habib’s conduct and communications, and it was not possible to say with confidence it had taken relevant issues into account – particularly when it was Habib who considered the ‘last straw’ had been reached.
The tribunal heard Habib had been involved in an incident in July 2014 involving colleague Zahra Asghar, the head of the family department and daughter of the firm’s founder Mohammed Asghar. Miss Asghar claimed – falsely as it transpired – that she had been sexually assaulted, and the locks of the firm were changed the same day.
Four days later, with Habib signed off work on sick leave, he attended mosque and was seen by two sons of Mr Asghar, who attempted to photograph him to show he was not genuinely sick.
Mr Asghar emailed on 14 August to explain why the locks were changed, saying this was due to the manner in which Habib had left the office.
By October, Mr Asghar emailed Habib to first point out he had not made contact for two months and later to observe his sick note had expired so he was absent without leave. Habib replied saying changing the locks had been the ‘last straw in the series of bullying and victimisation and harassment that I have been subjected to’. He claimed he had been constructively dismissed.
The employment tribunal found there was no affirmation of the employment contract by Habib prior to him resigning on 7 October 2014. This was irrespective of when the ‘final straw’ moment had occurred.
But the firm said the tribunal had not adequately explained its reasoning.
Her Honour Judge Eady QC said the employment tribunal had needed to reach its findings based on the full chronology of exchanges between the parties, from the date of the ‘last straw’ Habib had relied upon.
She added: ‘The decision is rendered unsafe in the sense that it is impossible to be certain that the ET in this case did have regard to all the relevant factors.’
The case was remitted on the question of affirmation.
(Courtesy: Law Society Gazette)