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Employment tribunals - constructive dismissal

The recent case involving Sir Alan Sugar and winner of the Apprentice, Stella English, has placed employment tribunals and constructive dismissal claims in the spotlight.

Background to the case

Stella English was hired by Sugar after winning the popular TV programme in 2010, the prize of which was a job in the businessman’s empire. However, she sued him for constructive dismissal after quitting the £100,000 post, complaining that she had been treated like an “overpaid lackey”.

Legal experts seemed to agree that the case had little chance of success because an employer does not have an obligation to provide an employee with something to do. English effectively told the tribunal that her role was redundant and therefore it was very likely to find that her contract had not been breached and that she was not entitled to resign and claim constructive dismissal.

Even if she had succeeded in her claim, it is very likely that the damages would have been minimal because, after resigning, she was offered another position by Lord Sugar and, if she had not taken up the new post she would have been made redundant soon after anyway. Therefore, it was always unlikely that she would succeed in her dispute with Lord Sugar.

The judge in the case, John Warren, said that it was a claim that should never have been brought as English knew perfectly well the job she would be asked to do when she accepted the prize.

The well publicised claim is an illustration of why constructive dismissal claims are notoriously difficult to win. Even where the worker has been subjected to unreasonable behaviour by the employer, it does not necessarily follow that this will be sufficient to prove the seriousness of a breach of a term of the contract.

Constructive dismissal

Constructive dismissal occurs where an employee is forced out of a job against their will because of the conduct of the employer.

As the Stella English case demonstrates, the reasons for leaving the job must be serious. They can range from being demoted, to not being paid properly and can also include being forced to accept unreasonable changes to how you work and being bullied or harassed at work.

Breach of contract

The breach of contract may be one major incident or a series of events which, combined, make up the breach. Because it can be difficult to prove at an employment tribunal, workers should be cautious about when they quit their job. It can in some senses be a balancing act, weighing up the desirability of staying in the job against the difficulties which will occur if you lose it. The English case, and many others besides, should act as a warning that if you leave the employment before a breach occurs, however intolerable you may find the workplace, your employer can evidence this.

However, it may also count against you if you stay in the job for too long after the breach has occurred. If you do this the employer is likely to say that you have implicitly accepted the breach and do not consider it a resigning issue. Therefore, leaving your job in this way and then taking action against the employer is a balancing act, and it can be seen that it is vital to get the timing right to give you the best possible chance of succeeding in a constructive dismissal claim.