An alternative role after a disciplinary process, and a resignation without reasons: Barbaro-Sant v World Aviation Group

Disciplinary proceedings do not by themselves make a later resignation forced. In Barbaro-Sant, a long-serving executive resigned after her employer decided not to dismiss her but offered her a different role. The Industrial Tribunal was not convinced that this was a forced termination, and the Court of Appeal declined to hear an appeal that only disputed the facts.

Facts

Barbaro-Sant had worked for the company since 1995 as Finance Executive and Personal Assistant to the Managing Director. In 2022 she was suspended on full pay and charged in disciplinary proceedings about the handling of company information. She was assisted by a lawyer, given the documents and replied in writing.

The company accepted that she had acted honestly but found the conduct unacceptable. In view of her long service, it chose not to dismiss her. It issued a final warning and offered her an alternative role with another company in the group, at the airport, on shifts and at lower pay, intended in part to reduce her access to confidential documents. She objected on several grounds, including the pay, the shifts and the location.

On 5 May 2022, the day after receiving answers to her questions about the new role, she resigned with immediate effect while offering to work her notice. The letter gave no reason. She then claimed constructive dismissal.

The Tribunal

The Tribunal asked whether the resignation had been forced by unfair conduct of the employer, or by conduct showing a fundamental breach of the employment contract without justified reason. It found no concrete proof that management had unreasonably or maliciously imposed an extreme or unbearable measure that made it impossible for her to continue.

Several points weighed against her. The offer had been made within disciplinary proceedings and not without reason. She resigned while still in contact with management about it, without ever giving a final answer. She said she understood the choice to be the new role or dismissal, but the Tribunal found that management had never threatened dismissal: she had assumed it. She had not used the internal appeal against the disciplinary finding. And while the Tribunal did not expect detailed reasons in a resignation letter, it said it would have been important for her to refer at least to resigning because she felt forced. Relying on an English textbook, it noted that an employee must make clear that they treat the contract as repudiated.

The Tribunal did not decide whether imposing a lower-paid shift role would itself have been a fundamental breach, because she resigned before any change took effect.

The appeal

The Court of Appeal held that the appellant was presenting a different view of how the facts should be interpreted and raised no point of law. Examining the merits was barred, so the appeal was declared null and void. A complaint that she had not had a fair hearing belonged to the courts of constitutional jurisdiction, not to the Court of Appeal in this appeal. Costs were awarded against her.

Significance

When a disciplinary process ends in an offer of a different role, the employee’s response matters as much as the offer. Get the terms in writing, ask whether it is an offer, an instruction or a condition of staying, and give a clear answer. A resignation sent mid-discussion, with no reason given, is hard to present later as a dismissal.

Related: Constructive dismissal in Malta · Bonello v OZO Services · Bilocca v HSBC Bank Malta · Exit review