Partner Article

You're fired! Or are you?

“But the fact is that I don’t give a sh*t.” This was the phrase allegedly used by Lord Alan Sugar to a winner of the popular TV programme “The Apprentice”, Stella English. The dispute between Lord Sugar and his former employee is hitting the headlines this week as Ms English’s Claim for constructive dismissal against Lord Sugar’s company is heard in the Employment Tribunal. So what will Ms English need to show, from a legal perspective, in order for her claim to be successful?

A constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so usually by virtue of the employer’s conduct. This will occur in situations where the employer has committed a ‘repudiatory breach’ of the employment contract. This means that the breach is sufficiently serious to justify the employee resigning in response to the breach.

Ms English must:

1. Identify the breach of contract. It can be a breach of the express or implied terms of the employment contract. A breach of an implied term which is often cited in constructive dismissal claims is that there has been a breach of ‘mutual trust and confidence’. This could be where an employer has created an intolerable working environment or where an employee has been subjected to bullying.

2. Ms English must then put forward evidence to substantiate her claim. The employer’s conduct can often be a series of events over a period of time. There is sometimes an incident which is referred to as being “the final straw”. This is often the last incident, which may in itself be relatively minor, but which provokes the employee into resigning.

3. Ms English must show that her employer’s conduct was serious enough to amount to a repudiatory breach of contract entitling her to resign.

Lord Sugar did not use his famous line “you’re fired”, but did he (or his company) behave in such a way so as to breach the employment contract sufficiently to entitle Ms English to resign? We await the decision with interest which may boil down to who the Tribunal believes.

This was posted in Bdaily's Members' News section by Lester Aldridge LLP .