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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 46773
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Is this Constructive dismissal? And should I resign please?

Customer Question

Is this Constructive dismissal? And should I resign please?
Washing their hands of a HMRC bill unpaid
Been told 3 times I'm being over paid In comparison to other members of the exec team.
Lack of respect for a contract...business wide!!
Finance CFO comment 'pretty useless' about me to other colleagues
HR - a lack of mgmt notes / 3 reminders, still no copy (to date).
Consultant - sales (not notified at all) others aware. Even still today.
Commission plan finally agreed in August, why?? And now not being paid in line with the agreement.
Generally, a lack of respect for the sales process. It's easy was one comment. Well NO it's not, it's a skill.
Exec person complaining about pay...Why?? Benefit of role?? (Graham).
Letting people go without consultation or even notification with me. APAC.
I've effectively been 'side lined' and compromised.
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. firstly can you tell me how long you have been employed there please.

Customer: replied 1 year ago.
Hi Ben, just under 4 years
Expert:  Ben Jones replied 1 year ago.

Thank you for your response. I will review the relevant information and will get back to you as soon as possible.
Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.

Customer: replied 1 year ago.
Hello Ben, I'm still waiting pls
Expert:  Ben Jones replied 1 year ago.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

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 it, or its employees, have broken the implied contractual 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 and going through the process, 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 unreasonable delay so as not to give an impression that the employer's breach had 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 from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer 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. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

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