Hello, my name is Ben and it is my pleasure to assist you with your question today.
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I feel I am bieng constructivly victimised, My contract terms were transfered over from Legal and General when I was TUPED, TCS are an indian company who have limited knowledge of english law
Many thanks for your patience. Can I clarify if you were basically sent on a secondment to L&G and if so, did you have any guarantees about returning to your old job when you were coming back to TCS?
I was sent on augmentation to Legal and General nothing was given to me in writing regarding my existing job at that time this is standard practice as there are others working on the same basis now. Had I realised I would end up in this mess I would have refused to go
Do you know what the usual arrangements are, if someone goes on such augmentation are they guaranteed their job on return?
As far as I know yes. Again never seen again never anything in writing though, however although redundancies have been made over the 5 years I have never known anyone bieng made redundant due to this situation
Is your employer expecting you to do another job now or are they looking at dismissing you?
They say they are 1. Expecting me to find another role in the company and 2. Say that they are also looking for somthing else somewhere.
Whilst you may refer to this period with L&G as augmentation, it is most likely going to be some sort of a secondment, where you are moved to work with a third party for a period of time. Such periods of work will usually be covered by a separate secondment agreement which would have dealt with the actual terms of this move, including what you could have expected on your return to your usual employer TCS.
In the absence of such an agreement, then you need to look at what was agreed with you or what the usual practice in such situations is. For example, if you can show that others that have been through similar situations and have always returned to their original job then that would certainly help. However, any uncertainty over this, for example where some have returned, others have not, would imply that there was no guarantee that you would return to your original job, whatever the reasons for that.
If there was an indication you would be returning to your job or can demonstrate this has always been the case then you can indeed be looking at potential 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.
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 am seeing the HR manager tomorrow, he does not know I have contacted you for your 'opinion'. Are there any questions you feel it maybe wise to ask / points to clarify?
it would be important to check if there are any relevant policies that apply to this, for example anything related to amalgamations/secondments. Also remind them that if your old job is no longer available for you then you will be expecting nothing less than redundancy and that you also reserve your rights to pursue this matter further if necessary, such as through the employment tribunal
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