Why the Apprentice Lost

The decision in English v Amshold Group Ltd is out and you can read the whole thing here:

This is the case in which former Apprentice winner Stella English sued for constructive dismissal. I blogged here how it was difficult to understand from the press reports just what the case was actually about. Now that we have the actual decision, things have become much clearer.

What Happened

First, the facts. Ms English was employed by Viglen Ltd, one of the companies within Lord Sugar’s Amshold Group Ltd (AG). She actually started work at Viglen before she won the Apprentice as there was a gap between the end of filming and the actual decision being made. In the meantime both finalists were employed in different AG Ltd companies on  a temporary basis.

This means that although she left before the end of her 12 month contract, she did have a year’s service if you include the months she spent working for Viglen before winning the competition  I’m glad that’s sorted out, because that point had been bugging me.

When she was announced as the winner, she was given a one-year contract with a salary of £100K and she continued to work with Viglen. The contract started in January 2011.

She submitted a resignation in May 2011 without having any other job to go to. Lord Sugar arranged for her to work at YouView for the remainder of her contract. Importantly, she was employed by AG Ltd and was seconded to YouView. Although Alan Sugar was at the time a director, it was not a company that he owned.  However, because Ms English was seconded, it is clear that her continuity of service was maintained because AG Ltd and Viglen are ‘associated employers’. She was not actually employed by YouView (that had been bugging me too).

Clearly she enjoyed the work at YouView and wanted to stay, but YouView made it clear that beyond the duration of her secondment there was no job available – certainly not at a salary level of £100k – although there could be opportunities for contract work. It appears clear that Lord Sugar was not in a position to offer her any such work – that was a matter for the management of YouView.

In September 2011 Lord Sugar informed Ms English that her contract would not be renewed after December 2011. This is surely not surprising. Ms English had left her job in Viglen and it was clear that she did not want to return. AG Ltd could not employ her indefinitely to work for YouView as it gained no benefit from the arrangement. In AG’s view it had already gone the extra mile in funding a six month secondment for Ms English for the remainder of her one-year contract.

Ms English then submitted a resignation with immediate effect in October 2011 and claimed constructive dismissal.

The Claim

Interestingly, there was initially a whistleblowing claim submitted but that was withdrawn – although only at the end of the hearing. There is no indication what alleged public interest disclosure Ms English had made.

She claimed that she had resigned in response to a breach of the implied term of trust and confidence. Her main point was that in a meeting with Lord Sugar on on 28 September 2011, when he told her that her contract would not be renewed, he said that he had only put her into YouView for the integrity of the show and used the phrase ‘I don’t give a shit’ (although precisely what it was that he did not give a shit about was a matter of dispute).

If that wasn’t enough to  to amount to a fundamental breach (and it does sound a bit weak doesn’t it?) she also argued that this conduct was the last straw and relied on a series of statements made by senior management at Viglen and Lord Sugar himself going back to the beginning of her employment  – and dating to before she won the competition and entered into the one-year fixed term contract. It isn’t worth going through these allegations in detail, but essentially she was alleging that the job was a sham, that she was treated with a lack of respect, given no proper work to do, and undermined from the outset.

Why she lost

The Tribunal was faced with clear conflicts of evidence about what was said by whom over the course of her employment. Where there was a conflict they essentially believed the evidence of the employers including Lord Sugar and did not believe Ms English. She therefore lost the case because, she had not shown any conduct which amounted to a fundamental breach of contract.

Specifically they found that the job at Viglen was a meaningful job with real responsibilities and duties that were appropriate to her skills and which had real opportunity for growth. They rejected the allegation that Lord Sugar summarised the feedback he had received about her as ‘nice girl, don’t do a lot’.

Not being present for the evidence being heard, I have no idea whether the decision is the right one or not but it seems carefully reasoned enough. It was a clear win for Lord Sugar and his companies, who really don’t come in for any criticism from the Tribunal at all.

Indeed the Tribunal is quite harsh about the decision to bring the case. At the end of the judgement they say this:

154. This was a claim which should never have been brought

155. The Tribunal considers that the Claimant who had sought legal advice prior to putting in her ET1 was ill-advised to bring a claim and or continue it

Of course we don’t know what the legal advice to Ms English actually was given, but I would have said that even accepting that her version of events was true her case had some serious problems:

  • Even if her version of what Lord Sugar said to her just before she resigned was correct, it is not clear that that amounted to a fundamental breach of contract. If she had been give work at YouView just to save embarrassment  why would that matter? She accepted that the work there was meaningful and appropriate. 
  • Much of the evidence concerned comments allegedly made from the outset of her employment. However at that stage she was employed on a temporary contract and she entered into a new contract in January 2011. How can comments made under a previous contract accumulate to be a fundamental breach of the new contract? 
  • It is clear that she made no complaint about her treatment at Viglen directly to Lord Sugar – although she was in frequent contact with him and had his direct line.
  • She did not indicate that she had any cause for complaint when she resigned from Viglen.
  • She resigned from a job where she was essentially on secondment for a fixed period. Given that her employer gained no financial benefit from her work, her dismissal through the expiry of the contract was surely inevitable. What losses could she actually establish?

Lord Sugar is quoted today as saying that this case shows that employers should stand up to claims such as this. I agree. It is often assumed that an employer will simply cave in and settle a case that can lead to adverse publicity. Many employers and employees frankly overestimate the publicity potential that the case may have – although this case is clearly exceptional. Even where publicity is likely however, some cases need to be fought rather than settled.

It is worth bearing this simple fact in mind when we look at reforming employment law. The current debate is expressed in terms of dispute resolution- doing a deal. That’s all very well but we should remember that the Tribunal system is not just about facilitating a deal, it is about doing justice between the parties – and employers are just as entitled to justice as employees.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Unfair Dismissal and tagged , , , . Bookmark the permalink.

5 Responses to Why the Apprentice Lost

  1. Thank you for your lucid post, Darren. I think I know the Ms English type. I certainly know senior people can spend huge amounts of time mollifying employees who claim to have been given a raw deal. They partly do this because they’re anxious to stay on the right side of a potential tribunal, but also I think because work is usually fairly ambiguous, and conscientious managers assume a degree of culpability when an employee is unhappy. I’ve quite often seen senior people throwing good time after bad before they eventually twig that it’s not about them. With hindsight in the instances I’ve seen, the answer was a firmer stance earlier on with an obviously fair process to get to an exchange which works for both sides: salary in return for performance. Lord Sugar’s perspective (in a bbc interview since the judgment) is that his apprentice was so distrusting that such a process wouldn’t have worked.

    • Jan Elliott says:

      Appreciate the well made comments. I feel the initial legal advice to pursue constructive dismissal should be questioned – although it’s not my field but a county court breach of contract might have made more sense?

      • Well the essence of the case is that there was no breach of contract, so I don’t think that sort of claim would have made any difference. Besides, the loss in a breach of contract claim would be limited to the duration of the fixed-term contract anyway.

        Basically it was just a poorly thought out case from the start.

  2. Pingback: The Justice Gap » Blog Archive » Lord (Sugar), dismiss us with thy Blessing

  3. Missus Jones says:

    Agree with your blog. The small charitable organisation I work in is at the moment under the cosh of a similarly unreasonable claim from an ex employee who is an employment solicitor! I wonder why Sugar’s legal team couldn’t persuade the Tribunal to conduct a pre-hearing review and order a deposit etc. We face a 6 day hearing of an almost identical claim which is similarly ill advised and hopefully will result in the same consequences for the claimant.

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