S Holmes v Tellemachus Ltd

Where a litigant in person’s claim and documents clearly assert that resignation was caused by the employer’s treatment, an employment tribunal must consider whether constructive dismissal is alleged. The absence of that legal label is not decisive.

If the documents are expressly incorporated and set out the basis of the claim, the tribunal must address whether the employer repudiated the contract, whether the employee resigned in response without affirmation, and whether a contractual clause permitting recovery of recruitment fees consequently remained enforceable.

The claimant resigned after a short period of employment. The respondent deducted £945 from her final wages under a contractual clause allowing recovery of recruitment fees.

Her claim form referred to attached grievance correspondence. The letters alleged bullying, criticism and work-related ill health, stated that she had been forced to resign, and challenged the deduction. The Employment Tribunal rejected her penalty-clause and unlawful-deduction claims but did not consider constructive dismissal.

On appeal, the respondent accepted that, if constructive dismissal had been sufficiently raised and were established, the fees would have to be repaid. The central issue was whether constructive dismissal was properly before the Employment Tribunal.

1. Appeal allowed and remitted. On a proper construction of the claim form and the documents expressly incorporated into it, the claimant had sufficiently raised an allegation that she resigned because of the respondent’s conduct. The Employment Tribunal therefore erred by failing to determine constructive dismissal.

2. The claimant’s attachment of the two letters was not merely the provision of extraneous material. She had identified them in the claim form as setting out the issues and grievance forming the basis of her claim. Their allegations that she was forced to resign because of the respondent’s treatment required consideration, notwithstanding that she did not use the expression constructive dismissal.

3. The necessary inquiry was whether the respondent had breached the implied term of mutual trust and confidence, whether the claimant resigned in response to that breach, and whether she had affirmed the contract. If constructive dismissal were established, the respondent accepted that it could no longer rely on the clause permitting recoupment of recruitment fees.

4. The Employment Tribunal should take particular care with documentation supplied by litigants in person so that the core claim is identified. The short listing did not remove the need to identify that issue; appropriate case management and a longer hearing should instead have been considered.

5. The EAT did not itself determine constructive dismissal. It remitted that question to the same Employment Judge, who could fairly determine it after further case management and evidence. If constructive dismissal is found, the fees must be repaid.

• Employment Appeal Tribunal: Allowed the appeal and remitted the constructive-dismissal issue to the same Employment Judge.
• Employment Tribunal: Employment Judge D M Jones rejected the claimant’s penalty-clause and unlawful-deduction claims after a hearing on 9 October 2019, without determining constructive dismissal.