Employment Law – Constructive Unfair Dismissal – Specific Complaint – Grievance

The case of Lambrou v Cyprus Airways Ltd [2007], concerned an employee who alleged that he was constructively unfairly dismissed. The employee was employed by Cypriar Tours Ltd (“Cypriar”), which was a subsidiary of the employer. The employee was employed as a computer operator from the 23rd of January 1989. However, from the 1st of May 2003, he also worked for the employer.In June 2004, all employees were given notice that within the next three to four months Cypriar would cease trading. The employee, who had not received his written terms of employment from the employer, requested a written contract.The employer’s financial controller informed the accounts manager that the employee would be transferred to its payroll from the 1st of October. On the 27th of September, the employee sent an email to the general manager, seeking official clarification of his transfer. Subsequent to learning that his P45 had been issued for inter-company purposes, the employee requested a copy. His request was initially refused, however, it was supplied to him on the 24th of September.On the 30th of September, he sent an email to the general manager and financial controller stating that he would be seeking legal advice on account of the failure to clarify his terms of employment. After he sent the e-mail, he did not return to work. He brought proceedings in the employment tribunal claiming constructive unfair dismissal. He alleged that four matters had caused him to leave.The tribunal held that it had jurisdiction to determine only the claim which had formed in the employee’s mind when he had decided to leave on the 30th of September. This was the only claim in respect of which a grievance had been presented in the form of the emails, namely those based on his terms and conditions of employment.The employer appealed.An issue arose as to whether the employee had failed to present a grievance in respect of the constructive unfair dismissal as required by the Employment Act 2002 (Dispute Resolution) Regulations 2004.The appeal would be allowed.It was held that dismissal claims were not subject to the requirement that they went through a grievance unless they were for constructive dismissal. What was required to be presented as a grievance was the same complaint as the employee sought to have determined before the tribunal.In this case, the very limited basis upon which the claim had been allowed to go forward by the tribunal had been incorrect. The only basis on which the claimant had got through the gateway to a hearing of his constructive unfair dismissal claim was reliance upon the emails. The complaint sought to be determined before the tribunal was that the employer had deemed the employee’s contract not to be binding. In the earlier emails there had been mention of the dispute about the precise terms and conditions of employment. However, in those earlier emails there had been no indication that the employee regarded his contract as void or that he would take steps to leave. It followed therefore that that was not the same complaint as was presented to the tribunal and thus it had been wrong to allow that part of the case to go forward.If you require further information please contact us at [email protected] or Visit http://www.rtcoopers.com/practice_employment.php¬© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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