Case note. Court of Appeal (Inferior Jurisdiction).
A refused career break did not justify resigning: Bilocca v HSBC Bank Malta
- Court
- Court of Appeal (Inferior Jurisdiction)
- Date of decision
- Case reference
- Inferior Appeal 80/2023 LM; Industrial Tribunal case 3642/CCG, decision 2925
- Jurisdiction
- Malta
- Parties
- Daniel Bilocca v HSBC Bank Malta plc
- Bench
- Mr Justice Lawrence Mintoff
- Decision under appeal
- Industrial Tribunal, decision 2925 of 5 July 2023 (chairperson Dr Charmaine Cristiano Grech)
- Result
- Appeal rejected; the Tribunal's rejection of the constructive dismissal and discrimination claims confirmed, with costs of both instances against the employee.
A refusal can explain why someone leaves without being a breach. In Bilocca, a bank manager resigned after his request for a career break was refused. The Industrial Tribunal held that the bank was entitled to refuse, that the claim of constructive dismissal failed on every criterion, and the Court of Appeal declined to revisit its assessment.
Facts
Bilocca had worked for the bank since 2006 and was a Financial Crime Risk Manager. He found a one-year post as a risk and compliance manager with a local firm serving the financial sector, and applied for a career break under the collective agreement so that he could take it and return. The bank refused, on the ground that the work would create a conflict of interest.
He resigned by letter in January 2018, with effect from the end of March, and worked his notice. His letter thanked the bank, said he was leaving because of the refusal and added that he did not exclude returning to the bank one day. He raised a grievance only after resigning, and then claimed constructive dismissal and discrimination before the Industrial Tribunal.
The Tribunal
Because constructive dismissal is not written into Maltese law, the Tribunal said it was free to apply English principles. It applied four criteria drawn from Western Excavating v Sharp: a breach by the employer, actual or anticipated; a breach that is serious, or part of a series ending in a final straw; a resignation caused by the breach; and no acceptance of the breach, for example by delay. It also applied the implied duty of trust and confidence, looking at both sides’ conduct objectively.
The collective agreement left career breaks to the bank’s absolute discretion, and excluded them where the other job was in financial services. The refusal was therefore justified, and the first two criteria failed. Causation was doubtful given the warm tone of the letter, and Bilocca admitted he would have resigned even if the grievance had won him the break. The fourth criterion failed because he worked his notice rather than leaving at once. The Tribunal added that an employee claiming constructive dismissal should show he did what was possible and reasonable to resolve his complaints; a grievance filed after resigning was an afterthought. In its words, this was simply a case of an employee who did not get what he wanted.
His separate complaints of discrimination, on equal pay, a bonus and his choice of union representative, were also rejected.
The appeal
The Court of Appeal found that most grounds were a difference of opinion with the Tribunal’s reasoning and its appreciation of the evidence, including its reading of the resignation letter, and raised no point of law. It took no cognisance of them. A ground invoking EU equal treatment law and the rules on the burden of proof was a mere allegation that did not link those rules to what had happened, and was rejected. The decision was confirmed in full, with costs of both instances against the employee.
Significance
Before treating a refusal as a reason to leave, identify the entitlement that was breached. A strong personal reason for wanting something does not make its refusal a breach. The case also shows how much the Tribunal reads into the resignation itself: thanks, an open door to returning and a worked notice period can each undermine a claim. Not every Tribunal will treat working notice as acceptance of the breach, but this one did.
Related: Constructive dismissal in Malta · Barbaro-Sant v World Aviation Group · Spiteri v Malta Gaming Authority · Exit review
Key insights
- Refusing a benefit that the collective agreement leaves to the employer's discretion, for a reasoned concern, is not a breach that justifies resigning.
- A friendly resignation letter, working the notice and a grievance raised only after resigning all weighed against the claim.
- An appeal that only disagrees with the Tribunal's reading of the evidence, including of the resignation letter, raises no point of law.
The law changes, so please check the current position with an advocate before acting.