UK Employment Law
UK Employment Law Questions Answered by Verified Experts
Hello, I have seen your question and will respond in full later today, thanks in advance for your patience. You will get an email when I have responded
Thank you for your patience. This could indeed amount to constructive dismissal, which occurs when the following two elements are present:
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. So a formal grievance is an option at this stage and you have the right to raise it if you believe you have been the victim of a wrongful act.
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 or claiming, 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 settlement agreement. Under a settlement 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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much
Has the employer taken any formal action and told you they are investigating this as a grievance, for example have they even mention the word grievance to you?
he should have really treated this as a grievance so if he has not then I suggest you make it clear in your next correspondence that you wish this to be treated as one and that a formal grievance procedure is followed. They need to follow the ACAS Code:www.acas.org.uk/CHttpHandler.ashx?id=1047You would not necessarily be delaying it for too long if you can show you had tried to resolve this in the meantime but once it appears these attempts have been or are likely to be unsuccessful then you need to seriously consider your next steps
check to see if you have a formal grievance policy you need to follow but usually anything in writing should suffice so an email would be ok. If you want to follow it up with a letter then all the better. Also you can meet with him but make sure you take notes of what was said in case it is disputed in the future
what you have done so far is raise this informally and if that has not resolved anything then the next step is the formal grievance
well you can do but if you have already raised these issues in the past then it would be treated as an informal grievance anyway. the grievance does not necessarily have to be against anyone specific but obviously if you are complaining about someone's actions then it would be against them, otherwise it could be a grievance against a certain situation or procedure
well you either stick with it and try to find a way forward or you challenge it head on and do your best to try and get something out of it. No one can predict the outcome of anything you take forward so you have to decide whether it is really that bad that you need to do something about it or that remaining in your job is more important, regardless of these issues
well the decision may have been made for you, as mentioned all i can advise you is on your rights and what you can do, but what you actually do next is something that only you can decide
we cannot provide prospects of success - you can only get this from a solicitor who has seen you in person and conducted a full case analysis. Also whether something is upheld is very difficult to predict in advance - we still do not know what the employer's case would be, what they would provide as defence, what their witness evidence would be and that will have a big impact on any outcome too
that may be the case but of course it is just speculation at this point in time. A grievance will be your first step and does not necessarily have to proceed to constructive dismissal
are you happy to meet with him?
if part of the answer is yes then i suggest you give it one last shot to see what can be done and if this meeting does not resolve anything that is when you can move forward to the formal formal process
you can meet up whilst signed off if necessary, it's up to you. If not then I suggest you meet up on your return
it's up to you whether you want to meet with them when you are off - they cannot force you so the decision is in your hands, depend son how you feel about it and if you can face it whilst officially signed off sick. Whilst you can involve the union at any stage, they will be of most help when the formal process starts, but you have nothing to lose by involving them now
That would be very subjective - you are the person who is unhappy with the situation and only you know what would be an acceptable resolution. I cannot say what will be reasonable because what is reasonable for one person, certainly would not be for another
possible outcomes could include disciplining those responsible, moving either party to another job to avoid any direct contact between each other, or even agreeing a settlement agreement for one of you to leave
it is for the employer to arrive at the most suitable outcome and they can do this in discussion with you - you cannot ask they do something specific, you can say what you would prefer but the final decision rests with them. They can be carried out without going through a formal grievance
you can mention these indeed. the head would be representing your employer, but if you are not happy with the outcome of the grievance you can appeal and the appeal would be heard by someone different
yes I know but that is in case you dp
you cannot be sure that someone is disciplined unfortunately, as mentioned you cannot force any of these outcomes, it is for the employer to decide what is most appropriate in the circumstances. You just have to be open and say how you believe this is best resolved, this is not bribery (or blackmail), you have the right to raise your opinion over this. You do not even need to threaten the grievance route, it is your right to do this if you want to
nothing stopping you from meeting with the head alone, as long as there is evidence you are doing something about the situation it would not be an issue if you returned to work in the meantime
yes you can do, he can have someone neutral to act as witness and take notes but you do not have to meet with the people you are complaining against
it is not a legal requirement t take notes, you van take your own if needed
as mentioned you can take your own notes. Any prudent employer would take their own too but it is not a legal requirement. In a grievance this becomes more important and a note taker should be present
I cannot tell you whether to resign or not, I can tell you your rights and what you can do, with resignation being one option, but the final decision rests with you. I have discussed your position in detail and am now covering issues I already mentioned above - your steps should be in this order - the informal meeting, then a grievance, discussions of potential settlement agreement and last option - resignation
you can do but it is best if it is discussed when there is a formal complaint ongoing, such as a grievance, it would provide better grounds for an employer to consider offering it
the issues you are experiencing, the whole situation, the same grounds can be covered in both the informal meeting and the formal grievance
'can be carried out' does not mean 'must be carried out', so if discussed during a grievance you will likely stand a better chance of getting it offered rather than discussing it in an informal meeting.As we have been chatting now for over 3 hours I will need you to start a new question I'm afraid if you need to continue with this subject as the original fee would not have been intended to cover such a long period of time. Thank you
it may be, it depends on the terms of your subscription but I only get credited once for every 'session'
you may certainly mention it, it is not wrong to do so, I just said earlier that you may have that little bit more ammunition if raised following a formal grievance. To be honest raising it now and following a grievance would not be an issue either if you wanted to do it that way
yes you may do so, after all you need to tell the employer how you feel, how this is affecting you, etc - they need to see the full picture
so perhaps you should stop trying the informal chats and just go for the grievance
if it has not worked in the past then I do not see why you should, a grievance is just a grievance, you have the right to raise one, do not shy away from it for so long
yes as mentioned you can appeal the grievance outcome and it will be heard by someone else, usually a higher authority like the Governors. I will have to go now unfortunately, I have not had a break since this morning and it's about time I got some dinner. You can save this whole conversation and refer to it in the future as necessary, there is plenty of information for you in there
hopefully you will not need my advice again as this will get resolved but if you need me you can always ask for me by name as you did here and I can pull up out previous correspondence
all the best
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