No Job For An Apprentice?

Stella English, who was the winner of the BBC series “The Apprentice” back in 2010, has just lost her claim against Lord Alan Sugar’s IT company Viglen for constructive dismissal. The Employment Tribunal went so far as to say that hers had been a case “which should never have been brought” which is about as clear an indication as you can get that her claim was without merit.

Ms English brought a claim for constructive dismissal against Lord Alan Sugar complaining that she had been forced to resign from her £100,000 a year job because there was no work for her to do, that she was required to carry out only basic administrative tasks and that she had been treated as no more than an “overpaid lackey.”

Sugar’s defence was that she had been given a suitable role, and that she had been fully aware from the outset that there had never been any suggestion that she would work directly alongside Lord Sugar and receive first hand the benefit of his business wisdom.

In a statement after the tribunal’s judgement, Lord Sugar said: “There was never a case for us to answer but her need for money and fame meant that the whole system was subjected to this charade.

“I have been cleared of a derisory attempt to smear my name and extract money from me. The allegations were without substance, and I believe this case was brought with one intention in mind – the presumption that I would not attend the tribunal, that I would not testify and that I would settle out of court, sending Ms English on her way with a tidy settlement.

“I’m afraid she underestimated me and her reputation is now in tatters.”

Constructive dismissal arises when an employee resigns in response to a fundamental breach of contract by the employer. Most employees know the express terms of their contracts of employment (such as hours of work, holiday entitlement, sickness absence provisions and so on) and commonly these are set out in contract, but under English law other terms apply and underpin each and every contract of employment regardless of the fact that they might not be set out in black and white.

These other terms can be “implied” into every contract and are of equal importance to the express terms.

One such example of an implied term is that there should be mutual trust and confidence between an employer and an employee. Often referred to as the duty of trust and confidence, this term applies to each and every employment contract in this country. Even if it is not explicitly set out in your contracts, the duty will still apply.

And most constructive dismissal claims are brought when an employee feels that the employer’s behaviour, or treatment, has been so damaging as to destroy that duty of trust and confidence.

But the reality is that it is in practice exceptionally difficult to prove a constructive dismissal claim. They are invariably very difficult claims to prove. This is because an employee has to show that the conduct complained of went beyond unreasonable behaviour and actually fundamentally damaged the contract of employment. It is not enough to show that there has been bad treatment, or that the lows of working relationship outweighed the benefits. There needs to be more than this.

In the current climate, it is perhaps even more difficult for an employee to embark upon a constructive dismissal claim because it involves the employee leaving his or her job. Prospects of securing alternative employment are difficult in many sectors, which makes a resignation and a constructive dismissal claim a decidedly risky strategy for an employee.

Many, perhaps like Stella English, will embark on such claims hopeful in the knowledge that some employers choose to pay settlement sums out of convenience and with a view to avoiding expensive and time consuming litigation. Lord Sugar didn’t. Being on the receiving end of any Tribunal claim can be a daunting experience, but with the right advice and guidance from the outset, employers can make informed and appropriate choices designed to bring cases to a swift and satisfactory conclusion.

If you need advice, or if you are facing an Employment Tribunal claim, contact our experienced employment law team here at Gardner Croft who will arm you with the resources you need to make those all-important choices.