Key: Claimant found locks had been changed
An accounts clerk at a west London law firm who faced false allegations of sexually harassing a fellow employee – who was the daughter of the owner – has won his claim of unfair constructive dismissal.
After winning his claim first time around, he won it again on a reconsideration of the question of whether he had affirmed the firm’s breaches due to the time he took to resign.
The case brought by a Mr Z Habib against Asghar & Co. In July 2014, he came into the office to find that his desk had been “disposed of”. The same day the daughter of principal solicitor Mohammed Asghar, who was also a solicitor at the firm, alleged that Mr Habib had sexually harassed her.
Two days later, the locks were changed so that he could not get into the firm’s offices on Southall Broadway.
Having been signed off work sick while protesting at what had happened to him, Mr Habib resigned some two and a half months later, telling the judge that he had been waiting for an apology that never came.
These and other matters were found by Employment Judge Mahoney to have destroyed the relationship of mutual trust and confidence between employer and employee. He expressly found that the allegation of sexual harassment to be false.
On reconsideration, Employment Judge Smail ruled: “In my judgment, the claimant did not affirm these breaches. These were serious breaches of contract…
“The claimant had not returned to work. He had been signed off sick throughout the entire period. Part of the sickness was down to stress which was associated with these events.
“The reality of the situation was that the claimant could not return to work until there was resolution of the allegation either by way of withdrawal or apology or perhaps some independent investigation.”
The judge said Mr Habib “would have to have been engaged with such an event before it could be said that he had affirmed the breaches”.
He added: “In practical terms, it is very difficult to see how this relationship could have been rescued. The respondent did nothing to rescue it. The claimant did nothing to waive his position to claim a constructive dismissal.”
Judge Smail also accepted that that resignation was difficult for Mr Habib in his circumstances.
“This was the claimant’s first and only job in the UK having arrived from Afghanistan with very poor English and very few skills. The claimant had learned all of his skills in this employment.
“He lacked formal training and qualifications. His prospects of obtaining alternative employment were uncertain. He was the sole breadwinner of a family with five children. At one point he did have a close relationship with Mr Asghar.
“Against that background, the claimant was entitled to wait and see, particularly whilst off ill, as to whether there would be resolution. He was entitled to accept the breaches when he did.”
We have approached Asghar & Co for comment.