Constructive dismissal has become 'sexy' following the highly publicised tribunal decision in the case of Stella English v Amshold Group Limited. Miss English (2010 winner of The Apprentice), brought a claim of constructive dismissal claim against her employer, Lord Sugar's company, stating that she had no choice but to resign as she had no real role at the company.
Following the unanimous dismissal of Miss English's claim, Lord Sugar praised the tribunal and saw it as a victory against the so-called 'claims culture'.
So with this high profile case in mind, we look at the test for constructive dismissal and how organisations can prevent a claim against them for constructive dismissal.
A constructive dismissal occurs where an employee resigns claiming they did so as a result of their employer's behaviour. In order to establish a case for constructive dismissal the following points need to be met:
- There must be a fundamental breach by the employer;
- The employee must accept the breach and act by resigning from their employment; and
- The employee must not delay for too long a period in accepting the breach.
Identifying what constitutes a fundamental breach of contract by the employer in any given scenario can be difficult and an employee will need to:
- Identify what the alleged breach of contract is;
- Establish evidence to support their claim; and
- Satisfy the court or tribunal that the facts as proven are sufficient in law to amount to a fundamental breach of contract.
The breach on the part of the employer can be one event or a series of events which culminates in what is known as the 'final straw' doctrine - where a series of actions or one single action has amounted in a breach of the implied contractual term of trust and confidence.
Here are some steps to help an organisation prevent an employee bringing a claim for constructive dismissal:
- Have the appropriate procedures in place for dealing with grievances and disciplinary issues;
- Work quickly to resolve matters with employees before they escalate;
- Engage with your employees ? when people feel valued by their employer, they feel part of the organisation.
If however you feel that there is a potential that an employee may bring a constructive dismissal claim or you wish you bring one as an employee, please speak to a member of the employment team to discuss this.