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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 48196
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, Around a year ago the department I work in underwent

Customer Question

Hi,

Around a year ago the department I work in underwent a major upheaval with restructuring etc. Along with this came the need for multi-skilling across the department which of course I agreed with initially.

However, at this point a colleague and I were switched around so I took her role as Purchasing Coordinator and her taking mine as Production Planner. Not 6 months before the Purchasing Coordinator role became available and I had applied along with my colleague partaking in the role change. At the time I was unsuccessful but following on from the interview having asked questions I had made the decision that the role wasn't right for me so was happy to remain in planning.

When the initial swap was proposed I advised my line manager of this stating that this role wasn't for me and I had reservations that I would struggle with the workload. After discussions I advised I was willing to give it a try and was told by my line manager that it was only temporary for a period of 3 months.

I underwent training and after around 4 weeks I returned to my line manager advising that as I suspected I was not managing with the workload and that at the time I was unhappy. I was again told to stick it out until the end of the 3 months.

I have since returned to my line manager advising that the workload is too much for one person at least twice every month since. This has been ongoing now for 13 months.

Over the period of 13 months I have made several mistakes which are very basic but have very negative consequences i.e. late customer order when they have paid for express delivery. Up until being signed off work by my doctor with work related stress I thought this was down to being under too much pressure that my memory was suffering but I'm told this is a result of stress.

How I've managed for so long without recognising that I'm suffering from work related stress I don't know but I guess as I'm young I've never come across this before.

Whilst off sick my team leader rang me on several occasions not once asking how I was but all the time documenting every conversation. I understand from a business point this has to be done but for her to refer to notes she had made on a previous conversation just made me worse. I felt that I couldn't ask questions that I needed to ask about whether I would be paid as it would look bad on paper.

I returned to work a few days ago and was handed an envelope after my return to work and advised to read it and consider over the weekend.

In the envelope there was a letter offering me back the role I first took on when I began working for my current employer but this isn't putting me back where they swapped me from therefore this is a set back in my career. They are however offering me the same salary as I am on now. The role offered is at a different location further away from home and there is no offer of assistance with fuel costs.

They want an answer within the week but I feel like I shouldn't have to put my career on the back burner as a result of my stress that was caused by work and the lack of help. My current role is still available so I would like to know where I stand legally as I do not wish to accept their offer. I would much prefer to keep my current role and ask for assistance in order to do so.

I had also asked the question about who would take my role if I took the role offered to me as there is no opening and it would again have to be a swap. I was advised that someone from the site that I have been offered a role at would transfer to my role.

Also, having been refered to the company doctor, he read the referal letter from my boss to me and the comments were rather shocking and seemed to me as though he was trying to get the doctor on side.

If I do not take this role can they dismiss me and if so could I take this matter to court?
Submitted: 5 years ago.
Category: UK Employment Law
Expert:  Jo C. replied 5 years ago.
Would you mind summarising your question and I will try to help?
Customer: replied 5 years ago.

In a nutshell after returning to work from sick leave (work related stress) I have been offered a different role which my employer advises would be more structured and less stressful. Where do I stand if I don't accept? I don't feel that I should have to put my career on hold as by accepting I'd be going back to a role that I have progressed from therefore taking away my feeling of self worth.

 

Can I not give my response as I'd like to keep my job and put my ideas across? I've not been asked to contribute my ideas at any stage. My role is still available so surely I'm not forced to accept this different role???

Expert:  Ben Jones replied 5 years ago.
Hello, my colleague has asked me to assist with your query as it is more my area of law. What would you ideally like to achieve in this situation?
Customer: replied 5 years ago.
I would like to keep my role but have some of the responsibilities relinquished. However, my employer is advising that is the job and it cannot be changed. This is despite the fact that the role is ever growing so at some point responsibilities will have to be shared.
Expert:  Ben Jones replied 5 years ago.
Have you been threatened with dismissal?
Customer: replied 5 years ago.

No not at all. The mistakes that I have made as a result of my stress are minimal and have never been followed up with written nor verbal warnings. I have no record of warnings in my history of working with my current employer either.

 

My main concern is that they've given me this offer with only a week to decided and no information on what happens if I decline. It's not doing much for my stress level.

Expert:  Ben Jones replied 5 years ago.
I agree that they should have approached this issue more sensitively. If you were to decline the offer then dismissing you would be rather unfair.

If an employee has been continuously working at their place of work for over 12 months they will be protected against unfair dismissal. That means that to fairly dismiss them their employer has to show a potentially fair reason for dismissal and also follow a fair procedure. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to justify a dismissal as being fair and these are: conduct, capability, redundancy, illegality or some other substantial reason. The employer will need to show that the dismissal was for one of those reasons and also justify that it was appropriate and reasonable to rely on it in the circumstances.

In terms of the whole situation, you may be looking at a potential case of constructive dismissal. Constructive dismissal occurs when the following two elements are present:
• Fundamental breach of contract by the employer, which must be sufficiently serious to justify the employee resigning;
• An acceptance of the 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.

There are many examples of what can amount to a fundamental breach of contract (e.g. not being paid, changing terms and conditions, etc.). A common breach is also when an employer has broken the implied term not to undermine trust and confidence (e.g. when the employer’s actions have directly broken that trust, or when others have broken that trust and the employer is responsible for their actions). 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.

If an employee believes that their employer has committed a fundamental breach of contract, they are expected to raise a formal grievance first in order to officially bring these issues to the employer's attention and give them an opportunity to try and resolve the situation. If the issues are so bad that the employee can't even face raising a grievance, or of 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 with at least 1 year's 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, you may approach the employer 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 them in the future. It is essentially a clean break, although the employer does not have to agree to it.

As a final point, you should be aware that constructive dismissal is traditionally a difficult claim to win as the burden of proof is entirely on you to show that you had met the legal test as described above, which in practice is not always easy to accomplish. So think carefully before you go on to take any action in relation to this.

So consider your options carefully and also ask for extra time if you feel that will help.

Please press Accept for the advice given so far. If necessary, I can then provide further advice and guidance as required and answer any specific questions you may have. Thank you