Manager who quit after ‘public dressing down’ in group email was constructively unfairly dismissed

21 Feb 2020 By Siobhan Palmer

A single incident of abuse can be sufficient grounds for a successful claim,  tribunal rules

A manager at a logistics company was constructively unfairly dismissed following a “public dressing down” in a group email from another senior manager, an employment tribunal has ruled.

Fraser MacLean, who worked as a general manager for parcel logistics at Menzies Distribution, resigned without notice after he lost faith in a grievance process investigating the conduct of the company’s chief financial officer (CFO).

Paul McCourt, the firm’s CFO, emailed MacLean and 15 other staff members – including workers who MacLean managed – blaming him for the company’s poor financial performance in Scotland, which McCourt described as an “omnishambles” in the email.

The tribunal ruled this email constituted a repudiatory breach of MacLean’s employment contract. It noted a single incident of abuse was enough to find in favour of a claim of constructive unfair dismissal, and ordered Menzies Distribution to pay more than £14,000 in compensation and lost earnings and benefits.

MacLean had worked for Menzies since 2015, when it purchased a parcel company he was a shareholder of. The tribunal heard his job was “unrelenting and high pressure”.

In November 2018, MacLean resigned from his post, planning to spend more time with his family. He offered to be flexible in relation to working his notice, and it was agreed his employment would terminate 30 June 2019.

In April 2019, while the claimant was on holiday, he received an angry email from McCourt, also sent to 15 other colleagues, about the results of the company’s first trading quarter of the year. In the email, McCourt described the company’s financial performance in Scotland, where MacLean was based, as “a horrific result” and “a complete mess”.

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He also asked MacLean to be on a phone call that Friday, adding: “You are accountable for this omnishambles. And I want the numbers explained. There is no one else to point to. It is your voice and your voice alone.”

The email had the effect of humiliating MacLean in front of his colleagues, the tribunal heard, and he said he was irritated by the expectation he would take part in a meeting while on annual leave.

After his return to work on 21 April, MacLean waited to hear from McCourt and the firm’s CEO, expecting an apology for the email. When none came, he raised a formal grievance against McCourt with the head of HR.

In the complaint MacLean described the email asking him to be on a call during a family holiday as “harassment”, and said McCourt’s decision to copy in so many people and use such emotive terms amounted to bullying.

Following an interview as part of the grievance procedure and a phone call with one of the colleagues copied into the email, MacLean resigned with immediate effect. In his resignation notice, he highlighted that the investigator assigned to his grievance was not McCourt’s senior. He added that in his meeting with the investigator, “[the investigator] made no indication that he regarded the email as much more than an emotive email of the kind I might be expected to receive in the normal course”.

MacLean also claimed the colleague he spoke to over the phone said, in relation to having been interviewed as part of the grievance procedure, that he “was not happy about getting involved in [MacLean’s] shite”. He said McCourt’s email, as a result, constituted a repudiatory breach of his contract. He said he had no faith in the grievance process and would therefore be resigning with immediate effect.

On 27 May, a week after MacLean’s employment ended, he was informed his grievance had not been upheld. Menzies Distribution’s investigator noted bullying was usually a pattern of behaviour, and that the tone of the email, while tough, was not bullying.

But the tribunal upheld MacLean’s claim, noting: “There is no doubt that a single incident of abuse, verbal or written, can found a claim for ‘constructive’ unfair dismissal.” Menzies was ordered to pay MacLean the sum of £14,176.79 in compensation and lost earnings.

MacLean told People Management he was "delighted" with the outcome of the tribunal. "I was 100 per cent convinced that I'd been treated appallingly, and I was vindicated by the judgment of the tribunal," he said. "It's a horrible process to go through and very, very unpleasant, but I'm quite a principled person so I wasn't going to allow my principles to be compromised. I was very pleased that my decision to fight that was vindicated."

A spokesperson for Menzies Distribution declined to comment on the tribunal, but said: “We pride ourselves on our collaborative relationship with our employees and continuously look for ways to build upon our dynamic and engaging working environment.”

Vicky Wickremeratne, employment partner at Allen & Overy, said to avoid a repudiatory breach of contract, “employers need to make sure they do not do anything that undermines the relationship of trust and confidence between the parties”.

She noted that undermining a colleague in public or using emotive language was sufficient in itself to undermine a relationship. “As a guiding rule, managers should put themselves into the shoes of the colleague and ask: how would I like to be treated if I produced sub-standard work?” she added. “Even performance management can be done with respect."

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