Holmes v Tellemachus [2022] EAT 71
The Employment Appeal Tribunal upheld the claimant's appeal against the initial decision of the Employment Judge (EJ). The main contention was whether the claimant's assertion of constructive dismissal was properly considered by the tribunal.
Principles:
A constructive dismissal claim arises when an employee resigns because of the employer's conduct, asserting a breach of the mutual trust and confidence term.
Employment judges must be cautious not to overlook a litigant in person's contention of constructive dismissal even if it's not expressed in legal terminology.
Where an assertion of constructive dismissal impacts other claims, such as unlawful deductions from wages, it must be carefully considered.
Facts & application of the law
The claimant, describing a short employment duration with the respondent from January to April 2019, resigned and observed a significant deduction (£945) from her final wages relating to agency recruitment fees. She contended this deduction was penal and an unlawful wage deduction.
Her claim form referenced letters that outlined her grievances. These letters strongly insinuated a constructive dismissal, where she felt compelled to resign due to perceived ill-treatment by the employer. Specifically, she cited "constant criticism, bullying" and an "excessive workload" as triggers for her resignation.
At the hearing, the employment judge's primary focus was on the legal arguments about penalty clauses, and not on the core assertion of constructive dismissal. The decision made was against the claimant, which then prompted the appeal.
During the appeal, it became evident that the original tribunal possibly failed to thoroughly consider the constructive dismissal claim. If established, it would have implications on whether the respondent had the right to enforce certain contractual clauses leading to the aforementioned deduction.
To address the concern that constructive dismissal wasn't explicitly mentioned during the hearing, the respondent highlighted that the claimant's letters attached to her claim form should not be regarded as a full part of her complaint. However, given the clear indications from the letters and further submissions, the appeal tribunal found that the issue of constructive dismissal was indeed raised and required proper consideration.
In conclusion, the appeal tribunal determined that the employment judge fell into the "constructive dismissal trap", overlooking the key contention raised by a litigant in person. The matter warranted a more in-depth examination, especially since the outcome could influence other related claims.
For those aiming to appeal to the Employment Appeal Tribunal, this case underlines the importance of clarity when asserting constructive dismissal and demonstrates the tribunal's duty to discern and address such claims, even if not expressed in conventional legal terms.
