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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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Dear Ben, I am a Secondary School Teacher and had been off

Customer Question

Dear Ben,

I am a Secondary School Teacher and had been off on long term sickness absence for nearly five months due to a tragic bereavement in the family.

I returned to work on a two week phased return to find that my classroom had been cleared out, I had a locked cupboard in there and another member of staff had been asked by the assistant head of faculty to break the lock and he helped to throw stuff as he was told that the stuff was no longer of use!! This assistant head of faculty has been undermining and has had bullying traits towards me for the past 4 years! (She was previously my HOD) I have tried to get senior managment to deal with this issue by making them aware of othe incidents in writing but informally, and they either don't see what's happening or do not want to! This is the last straw really and I don't feel that I can continue to work at the School any longer! I have been there for 12 years and she has been there for 4 years. She is very clever and subtle in the way that she operates and puts on the charm with others! I have been to see the Head teacher before the end of the summer term and he Said he would look into this, clarify the decisions and actions taken and share this with me! Members of my faculty who also helped told me that the head had given his permission but the headteacher that the only thing he sanctioned was that the could look for books or assessments if the needed to! He also asked me for a list of personal items, pupil assessments and important documents that have gone missing! there were 12 years + of resources too! This ha been communicated via email as I was too upset to go in on the last day under the circumstances. (We are swapping rooms with another department and couldn't face going as didn't have any of my stuff to take with me) Head has said that he will explore where the lst of things are and he would welcome a meeting with me to discuss issued raised in my email, such a why ask someone to break the lock etc. I am almost 100% tat my all my stuff have been thrown in the skip or kept by my assstant head of faculty! I am at present off sick again with reactive depression!

Please advise where I stand in this situation regarding putting in a proper grievance instead of writing everything on an email, and also would I have a ale claim for constructive dismissal?

Many thanks
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

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

Customer: Ok.
Ben Jones :

Thank you for your patience. This could indeed 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. 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.

Ben Jones :

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

Customer: Hi Ben,
Customer: Thanks for your answer but I am still very confused! I have mentioned to you how I have responded to what has happened so have I done the right thing or should I be writing a more formal letter stating that it is a formal grievance? I noticed what had happened on the 9 th of July so when woul I be seen as delaying too long? Below is an extraction of what I wrote in one of my emails sent to the head teacher: As you are aware as well as things missing, my classroom was a complete mess when I returned on phased return, pupils excersise books and text books were scattered all over the desks and there were also books on the floor! There was hardly any room at all for pupils to complete work! I would be very grateful for answers to the following questions:1. Why was Martin asked to break the lock in order to get in to my cupboard?2. Why empty all pupil's exercise books on to the desks and put my labelled boxes out ready for the bin?3. Where is and what has happened to the rest of my stuff? 4. Who authorised these decisions and actions? and Why?I will look forward to your response, He ha responded on the 3 September with ' I will explore where the items are' And that he would welcome meeting with me to discuss the issues raised in this email! In the first email that I sent on the 12th of July I had emphasised the dadditional distress this ha caused me and also the lack of support from my department on my return to work. I have been signed off till 23rd of September with reactive depression. Please advise me what my next action should be? And an icea
Customer: And an idea of what the outcome would be.
Customer: Many thanks
Ben Jones :

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?

Customer: No not at all, in my first email I said that I would be grateful if he could investigate this! His reply was that as discussed he would look into what happened and would clarify the decisions and actions taken regarding my room and share this with me!
Ben Jones :

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=1047

You 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

Customer: Ok! Do I need to write a formal letter sent by post or is replying to his email stating this enough? Do you think it is a good idea or not for me to meet with him to discuss as he said?
Ben Jones :

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

Customer: I have checked the draft grievance policy and it says that procedure should be to first raise a grievance informally with SLMT or head teacher and that it should set out the nature of the grievance and hoped for outcomes?
Ben Jones :

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

Customer: Ok. But Gould I state in my email that it is an informal grievance? And who should I be making the grievance against? Thie assistance Head of faculty including past issues? As I think that she is the one behind all this and this was another way of getting at me! But it is difficult to prove as se as been very clever and involved others! So they will cover for her?
Ben Jones :

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

Customer: Ok. Thanks, XXXXX XXXXX to the info. I have given you initially and now regarding her, what would be your advise? She is the problem but has got away with things for 4 years and probably that's why she made sure this happened!
Ben Jones :

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

Customer: It's going to be very difficult for me to stick with it any longer as I have done this for 4 years and throwing everything I had in my classroom is the last straw really! I don't think I will be able to forgive these actions, And I am certain that if this is brushed under the carpet again, she will continue to antagonise and undermine me etc. I really don't want to be there with her, with no trust and feeling as if I have to watch my back all the time!
Ben Jones :

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

Customer: Do you think tat I have a case that would be upheld?
Ben Jones :

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

Customer: Yes that is my main concern with moving forward to a coral grievance or constructive dismissal! Because she has got one or two others involved to help, they will most probably will ave to cover for her to save putting themselves on the spot! Do you agree?
Ben Jones :

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

Customer: Ok thanks, XXXXX XXXXX do you suggest as a next step? Do I wait and see the outcome of the informal procedure by meeting with the head teacher discuss, or because I am off work do I ask him to let me know the outcome by email?
Ben Jones :

are you happy to meet with him?

Customer: Yes and no, when I mention the big picture and past issues he always says ' We are not talking about the past'! And I do not see either how this can be resolved, I will not be able to get my stuff back and from pat experiences I doubt that he will warn her off!
Ben Jones :

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

Customer: Ok. The problem is I am signed off work for another two weeks, so should I wait and meet with him when I return? Or not return until I know the outcome?
Ben Jones :

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

Customer: Should I suggest meeting up while I am off or leave it up to him to contact again? Also Should I involve the union at this stage?
Ben Jones :

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

Customer: From what I have told you what do you think would be reasonable and acceptable resolution to these issues?
Ben Jones :

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

Customer: I understand, but as an expert in this field and from the facts I have given you what in your opinion would be acceptable?
Ben Jones :

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

Customer: Ok. Thanks! When I meet with the head should he or I mention and discuss these outcomes? And could any of these outcomes be carried out without having to go through the formal grievance procedure?
Ben Jones :

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

Customer: So does the head teacher of a School count as my employer? How would they move one of us to another job, do you mean to another School? To be honest I doubt if the head will mention any of these outcomes! But if he doesn't would be acceptable for me to say that I feel that whoever responsible should be disiciplined? And also that I cannot work with her anymore as last straw and that I would prefer a settlement to leave?
Ben Jones :

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

Customer: But I haven't put a formal grievance in yet?
Ben Jones :

yes I know but that is in case you dp

Ben Jones :

do

Customer: I see thanks! How could I word these possible outcomes to him, as I don't want to sound as if it s bribery or anything like that! And would it be acceptable to say that if a certain outcome is not possible I will have no choice but to put in a formal grievance? And how could I be sure that someone had been disciplined?
Ben Jones :

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

Customer: Ok. So do you think it would be advisable for me to meet with the head on my own to discuss the resolutions and outcomes?
Customer: And by returning to work am I not showing that I have already accepted the situation?
Ben Jones :

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

Customer: Ok. One thing that also concerns me is what do I do if he has arranged for the others to be in the meeting with him, maybe to try and intimidate me? Could I request that I would rather meet with him alone?
Ben Jones :

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

Customer: What if he does not and no notes are taken as evidence of the meetings.
Customer: Meeting?
Ben Jones :

it is not a legal requirement t take notes, you van take your own if needed

Ben Jones :

can

Customer: But without notes how would there be evidence of the meeting?
Ben Jones :

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

Customer: To be perfectly honest I really do not want to work there with her any longer! As effecting my whole life! She is manipulative and I feel the HOF is now starting to cover for her as he can not control he behaviour and maybe does not want to admit to this! So maybe an agreed settlement would best outcome for me? Failing this under the circumstances should I go ahead with a formal grievance or just resign? I am just very concerned that even though I could do supply, I might not be able to get another full time teaching position as I am over 50!
Ben Jones :

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

Customer: Ok. Sorry if I'm going over old ground! So if steps should be in this order, an agreed settlement should not be raised and discussed in the informal meeting?
Ben Jones :

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

Customer: Ok. Therefore what should be discussed in the informal meeting?
Ben Jones :

the issues you are experiencing, the whole situation, the same grounds can be covered in both the informal meeting and the formal grievance

Customer: Ok? But I ave tried this many times before in the past, and he will say 'we are not talking about the pat we need to focus on what you raised in lat email'! Also I understand about you saying a formal grievance would provide better grounds to consider offer of a settlement. But previously you said the following: Ben Jones says:5:14 PMit 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
Ben Jones :

'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

Customer: Ok! Isn't the £33 fee valid for one month?
Ben Jones :

it may be, it depends on the terms of your subscription but I only get credited once for every 'session'

Customer: Ok. Anyway thanks for your advise and patience! I will leave feedback for you now! Just on east question! Is it best that I do not mention a settlement in the informal meeting with the head? But just wondering what I should say if he ask what outcomes would I be want from this?
Ben Jones :

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

Customer: Thanks again, it is a very complicated and horrible situation to be in and difficult to know what to do or say for the best! But would it be acceptable to say in the informal meeting that I don't feel I can stay in my job working with her as impossible to forgive the actions taken, and because of combination of unresolved issues in the pat this is the last straw. And that all trust has gone!
Ben Jones :

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

Customer: I have tried many times in the past but each time half resolved and brushed under the carpet until next incident! And each time when Zi try to remind him of past issues and cumulative to try to get him to see the big picture, he says we aren't talking about the past we need to focus on this nw!
Ben Jones :

so perhaps you should stop trying the informal chats and just go for the grievance

Customer: Yes maybe! But do you still advise giving it one last shot and having a meeting with him first?
Ben Jones :

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

Customer: Yes I think your right, i have just read the grievance procedure again and it says under - raising a grievance informally that member of staff can set out nature of grievance and hoped for outcome in writing to HOF, SLMT or head teacher why supporting document ion! And that the recipient will investigate and seek a resolution! And if grievance s not resolved it can then be raised formally by writing to the chair of governors and this might be grievance against the headtecher!
Ben Jones :

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

Customer: Ok. Thanks again, hope you enjoy your dinner and maybe we'll speak again soon!!
Ben Jones :

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

Customer: Ok. Thanks!
Customer: Bye!
Ben Jones :

all the best

Ben Jones, Solicitor
Satisfied Customers: 38835
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.





Ben I sent this email to my employer, and please see below the reply I got, taking into consideration our last correspondence what do you make of ? Please advise!





Subject
Raising a grievance


Thanks for your reply stating that you would explore where the listed items
are! Did you manage to locate any of them?

In response to my first email, expressing how much distress this situation
has caused, and also the lack of support during my phased return to work,
You said that you would look into this and clarify the decisions and
actions taken regarding everything in my room? I also mentioned in the
email, and during our meeting on Friday the 12th of July that I had already
spoken to My HOF regarding these issues! (See email sent 19th July).

As you are aware and due to the other informal grievances raised over the
pat 4 years, this is not an isolated case of antagonising, inappropriate,
disrespectful and bullying behaviour that I have endured from my (assistant HOF). This is 'The last straw' really!

Therefore I would still be very grateful for answers to the following
questions:


1. Why was another member of staff asked to break the lock in order to get in to my cupboard?

2. Why were All pupil's exercise books emptied on to the desks and my
labelled boxes put out ready for the bin?

3. Where is or what has happened to my stuff?

4. Who authorised these decisions and actions? and Why?


I do hope that you have found the time to investigate and seek a
resolution!


Will look forward to your reply.





His reply:


Thank you for this.

Once again I believe the best way forward is to meet in order to discuss
these matters and those that you raised in your earlier email of 2nd
September 2013.

You itemised several items of a personal nature that you believed to have
gone missing in the move from room 27. There are boxes and containers that are in one of the old English rooms. I would rather not look through these items but suggest that you come in to school in order to check throug
them.

As in my previous email I would like to establish when it is that you will
be able to return to work.

Finally the subject of your email refers to raising a grievance although
the body of your email does not indicate this. Please clarify this for me.



Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.
Hi Ben
I n my reply to this, I wrote at the end 'I am following the School and the Acas Policy'. Is this Ok.?

Thanks
Customer: replied 1 year ago.
I actually wrote. 'I

I am following the School and the Acas grievance policy!
Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.
S

Should'nt they know this already? What could I write now having already sent what I told you! Also were you suggesting that maybe I still try to sort this out informally or were you referring to what they could say to me?

Thanks

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