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How to avoid constructive dismissal claims

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8th Mar 2012
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Lord Sugar is as famous for his business success as he is for his “You’re Fired” catchphrase, but after seven series of ‘The Apprentice’ producing seven winners, only one still works for him.

Claire Best and Karen Plumbley-Jones of Bond Pearce recently wrote in HRZone.co.uk about Stella English, the winner of series six, who recently announced plans to sue Lord Sugar for constructive dismissal.

In a move that could result in a swathe of constructive dismissal cases, Lord Sugar is alleged to have told her that her contract would end in December and that he had already met his obligations to her.

Top tips to minimise claims

1. Have effective policies and procedures in place and ensure managers implement and communicate them

2. Address employee issues head on without delay and ensure that you are fair and consistent in your approach

3. Communication is key - be honest and open with your personnel and encourage them to act in the same way

4. Be fair and reasonable in all situations - as a rule of thumb, treat people as you would like to be treated yourself

5. Offer leavers an opportunity to reconsider.

Whether English will be successful or not remains to be seen as constructive dismissal claims are notoriously difficult for (ex-) employees to prove.

Constructive dismissal occurs when an employee resigns (with or without notice) and can show that they were entitled to do so by virtue of their employer’s conduct. But to succeed in their claim, it would be necessary to establish the following elements:

  • That there had been a sufficiently serious repudiatory breach (actual or anticipatory) by their employer of an express or an implied term of their contract. This is a high hurdle to overcome
  • That the employee accepted the breach, treated their contract as having ended and resigned in response to the breach. Whether they accepted the breach is a question of fact for the employment tribunal to determine
  • That they have not delayed too long in accepting the employer’s breach. If they delay, it could be seen as evidence that they have accepted it

If a staff member is successful in proving that they were constructively dismissed, it gives rise to a claim for damages for wrongful dismissal. If they have put in the requisite service (currently 12 months), they will also be able to claim unfair dismissal.

If an employee resigns and you have any reason to suspect that a constructive dismissal claim may follow, consider writing to them and offering them the opportunity to reconsider. Ask them to confirm their decision in writing within a couple of days.  

If any conduct leading up to the staff member’s resignation could amount to a repudiatory breach or the resignation follows in the wake of a misunderstanding, this is your opportunity to explain the situation, remind the individual that they are a valued employee, invite them to a meeting to talk things through and hopefully head off a claim at the pass.

Claire Best is a solicitor and Karen Plumbley-Jones is a practice development lawyer at law firm Bond Pearce.

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Replies (8)

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By Trevor Scott
09th Mar 2012 09:36

A better way, becoming more popular, ....

.... don't employ anyone.

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By The Black Knight
09th Mar 2012 11:16

I wonder if

she will get another Job ?

at least Lord Alan can afford it !

From what I have seen of the apprentice they all seem to deserve each other !

Obviously goes through employees at a fair old rate !

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By maxxy
09th Mar 2012 11:17

Once in a lifetime opportunity

Great article and good reminders.

Personally I will be watching this to see if the Apprentice constructive dismissal claim also considers this in the context of a once-in-a-lifetime opportunity and whether any compensation considers this as it's my understanding that under an apprentice banner payouts will be considerably more than for standard job roles.

Is there a view on this from HR Zone?

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By MartinLevin
09th Mar 2012 11:36

Occupational Health is under-rated

Under today's litigious atmosphere, I would draw everyone's attention to this little appreciated profession.  Ok so my wife is one.  Her results are always phenomenol, and her proactive advice has saved her clients several thousands of pounds.  Too many Personnel/Human Resources departments fail to carry out the guidelines needed for Employment Law, which has grown "like Topsy".   The lawyers are then consulted, and we all know what "value for money" that produces.  My wife has praise heaped on her, because of the positive and economic solutions that she "prescribes" - before the lawyers get involved.  Yet she is looking forward to retirement in a couple of years.  Any decent Occupational Health Advisors out there, please? 

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By Donald2000
09th Mar 2012 12:04

The Apprentice

It seems to be clear that Lord Sugar does not want these people working for him beyond a strictly time limited period, which he may or may not have explained to them. He pretty obviously does not want to fork out the advertised £100,000 salary for more than a year or two to his apprentices, when what they are doing might not be worth that amount of money to him.

The idea of the apprentice as a series is showing how to get people into a role with an employer and what might be required in that role; most of his candidates really dont have a clue about business anyway and those who do reach the final are pretty lucky to do so. Having said all of that, Stella English was one of the very few who really impressed me; she was a real professional. But I think she would be better off going elsewhere and getting another role rather than worrying about whether or not Lord Sugar is going to re-employ her. Life is a bit too short for that. As to her constructive dismissal, I think that is a bridge too far; I would have thought that Lord Sugar would probably have explained himself to her pretty concisely. I think this is just a bit of frisson for employment lawyers thinking that they can have a bit of a day doing ambulance chasing. Good luck to them if they really think they can take on Lord Sugar. But I think its a bit of a storn in a teacup, quite frankly.

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7om
By Tom 7000
09th Mar 2012 12:33

Stella

I know her brother ...Johnny

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By Trevor Scott
09th Mar 2012 12:50

I think she ...

... didn't understand that the job was just an opportunity to prove herself, she had to perform for Alan Sugar or she was of no use to him.

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By G A Lyon
09th Mar 2012 13:29

Showbiz

It's not real, it's only a gameshow.

Employment legislation is surely there to protect real people in real jobs.

Presumably Andrew Lancel has a claim now then.

 

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