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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38299
Experience:  Expert in UK Employment Law
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I have found out, through meeting minutes which were accidentally

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I have found out, through meeting minutes which were accidentally forwarded to me, that I have effectively been demoted. I work in a two team carers service(3rd sector), I have a half time job while the project lead has a full time job. The minutes said that "JS has received and increment. EW has not received an increment as her post is purely admin and she was appointed at a higher grade inicially". The case is my job was deemed more than admin, given a title of Project Assistant and a higher salary than the admin staff. It seems then that my performance was criticised and an increment refused at a meeting I usually attend, but was told not to attend this particular one! It has caused a massive rift in work, my supervisor refuses to work with me and there is a massive atmosphere so I don´t want to go in. Coupled with other problems I want to quit and claim constructive dismissal. Do I have a case, do you think?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Hi, I have been there 3 years.

Ben Jones :

This could potentially amount to constructive dismissal, which occurs when the following two elements are present:



  • Serious breach of contract by the employer; and

  • An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.


 


A common breach by the employer occurs when they, or their employees, have broken the implied term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).


 


The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.


 


If resignation appears to be the only option, it must be done without undue delay so as not to give an impression that the employer's breach has been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.


 


Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months less a day from the date of resignation to submit a claim in the employment tribunal.


 


As an alternative to resigning, the employer may be approached on a without prejudice basis (i.e. off the record) to try and discuss the possibility of leaving under a compromise agreement. Under a compromise agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation.


 


Just to make a final, yet important point, constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee. Therefore, constructive dismissal should only be used as a last resort and all else fails.


 

Customer:

Very useful to know, as I was thinking of a scenario such as you describe e.g. the without prejudice basis, and I want to be careful not to put my foot in it before a meeting arranged with the employers on Monday. I want to lodge a grievance first, but don´t want to put them on their defence because of this (they have had verbal tesimonies from myself and my supervisor, and they are in any case partially to blame).

Ben Jones :

in the end you have to be proactive at some point and whilst you may be on the backfoot for some of the time, you need to decide how to challenge them and whilst informal discussions can help to an extent, if it becomes evident that thing will not change then you will have to consider the formal grievance route before deciding on your next steps

Customer:

Thank you Ben! You have made things much clearer for me.

Ben Jones, Solicitor
Satisfied Customers: 38299
Experience: Expert in UK Employment Law
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