Category Archives: employment tribunal

What is Constructive Dismissal?

I receive a lot of enquiries from disgruntled employees looking to take their employers to an employment tribunal for constructive dismissal.  Constructive dismissal is very hard to prove. Employees must show that there was a fundamental breach of contract by the employer that leads to a breakdown in trust and confidence.  They must then show that the decision to terminate their employment was in response to the breach.  The grievance procedure should always be pursued first before terminating their contract.
When hearing a case of constructive dismissal an employment tribunal will consider the Western Excavating Test derived from Western Excavating Ltd v Sharp 1978 caselaw:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

The employment tribunal panel will have to decide whether a dismissal has taken place then will consider the fairness of that dismissal.    

A case that I successfully represented recently involved an employee complaining to her employer about the struggles she was having with her job that had been going on for months.  The employer wrote back to her advising her to get on and do her job otherwise they would be dismissed or alternatively they could choose to resign.  At the time the employer was unable to offer any work to the employee.  The employment tribunal panel decided that the employee had been unfairly constructively dismissed.

Do I need a barrister to defend me at an industrial tribunal?

One of the recent search terms on my website (employment tribunals page) has been “do I need a barrister to defend me at an industrial tribunal”.  The simple answer is no you don’t need a barrister it’s whether you can afford one.  There are, however, other more cost effective options to consider.  You could always think about representing your employment tribunal case yourself.  This would be the most cost effective route in terms of finances, however, in terms of time it would be very expensive.  You will have to ensure you have your paperwork in order and that you adhere to the essential deadlines set by the employment tribunal office.  The process can be very lengthy and time consuming depending on the issues related to the case.
As an alternative if you don’t have the time you may like to instruct a solicitor to represent your employment tribunal case,  however, although this would be time effective the financial costs of using a solicitor could be very high as they often charge by the hour for their time.  You would also need to check that they have the experience of representing in court – some don’t. 
A more cost effective solution both in terms of your time and money would be to instruct an HR consultant experienced in the tribunal process with a demonstrable track record of undertaking employment tribunal work.  An HR consultant can often offer more flexible charging terms.  They should be able to coach you seamlessly through the process keeping you fully informed as to what is happening at each step, but not involving you until really necessary.  They should also be able to undertake the paperwork processing, liaison with the other parties, ACAS and the tribunal office, negotiation settlements then providing effective representation during the hearing if things go that far.