An employee is constructively dismissed if the employer fundamentally breaches the contract of employment and the employee resigns in response. A breach of the implied term of trust and confidence will be a fundamental breach of contract. The test is an objective one – is the employer’s conduct likely to destroy or seriously damage the trust and confidence between employer and employee? A constructive dismissal can be created by a series of events as well as a one-off incident. If there is a series of incidents, which taken together amount to a breach of contract, the employee can resign in response to the last in the series, even if that in itself is not a fundamental breach of contract (though it cannot be utterly trivial). This is called the ‘last straw’ principle.
An employer should follow the Acas Code of Practice on disciplinary and grievance procedures when dealing with grievances or dismissing an employee for disciplinary reasons such as misconduct or poor performance. The Code does not apply to redundancy dismissals. If the employer unreasonably fails to follow the Acas Code, the employment tribunal can increase compensation by up to 25 per cent if it is ‘just and equitable’ to do so. In Rentplus v Coulson, the EAT looked at whether an uplift of 25 per cent could apply to a discriminatory dismissal that the employer had said was a redundancy dismissal.
Section 230(3)(b) ERA says that an individual will be a ‘worker’ if they work under a contract with the company and have agreed to personally perform some work. However, they won’t be a worker if they are running their own business and the company is a client or customer of that business. In Sejpal v Rodericks Dental, the EAT has looked at the worker status test and how it applies to a working relationship that is defined in the contractual paperwork as one of self-employment.
‘Without prejudice’ correspondence or conversations, which take place in a genuine attempt to settle a dispute, cannot then be used as evidence in subsequent legal proceedings. There are a few exceptions, including that the without prejudice rules should not be allowed to hide any clear cases of ‘unambiguous impropriety’, such as blackmail or perjury (lying under oath). Unambiguity is the key – the situation must be clear cut. As such, the without prejudice label will only be lifted very rarely.
The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
Disclosure of Brokers’ Commissions remains very much a live issue within the asset finance industry, and in our last Briefing we suggested some practical steps in Dealing with Broker Commission Refund Claims – Click Here
Since then we have been involved in a number of instructions which has caused us to undertake a thorough review of the case law both in terms of the Wood and Pengully decisions and various other cases, which has given us some encouragement in the approach to be adopted to at least some of these claims.
We recently succeeded in full in a claim for damages for conversion on behalf of a financier which raised the apparently novel point of whether a large Excavator fell within the definition of “motor vehicle”.
In De Lage Landen Leasing Limited t/a Hyundai Construction Equipment Europe Finance v Dring (Manchester Circuit Commercial Court 13 July 2022) both parties were the victim of a fraudulent disposition of the Claimant’s Excavator by the Hirer and/or an associated company.
Financiers have been, together with almost all other litigants, subject to what seems to be an ever-increasing spiral of expense in navigating the various fees and charges payable under the court system, a trend which is been in place now for almost 2 decades.
We thought it is worth highlighting two points which can bring some relief to this situation.
Last week, the UK Foreign Secretary, Liz Truss, announced a ban on certain professional and PR services exports from the UK to Russia. The banned services include management consulting, public relations and accounting. The Foreign Secretary commented that the ban will help to ensure that Putin fails in Ukraine, by cutting off service exports that are fundamental to the Russian economy.
Philippa Baty joined Bermans in October 2024 and is a Solicitor in our Property team.
She studied at the University of the West of England qualified as a Solicitor in 2017.
Philippa primarily assists the team on a variety of commercial property matters, including freehold and leasehold sales and purchases.
Outside of work, Philippa enjoys playing the drums and cycling, as well as seeing friends and family, going for walks/to the beaches on the Wirral…plus the odd psychological thriller or true crime documentary!
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