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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47363
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am employed as HR and Integration Manager for dental company

Resolved Question:

I am employed as HR and Integration Manager for dental company I am on a service agreement for these services and employed under a standard contract as Operations Manager and group practice manager for the same company. The board have removed me as HR and Integration with the view I have done an exceptional job no consultation. By removing me as a senior management team member and expecting me to revert to managing one practice they have made my position in the company untenable. I have also been subject to discrimination by the board. To complicate matters the MD is my husband who fully supports my decision to seek advice and do whatever is necessary. I am intending to file a formal grievance against the board. I am unsure if I have a case for constructive or would unfair be a better option
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer: 10 years I was TUPE over to MDP last March
Ben Jones :

So you are an employee rather than self employed/contractor?

Customer: I'm both
Ben Jones :

ok which part is which?

Customer: Group practice manager; practice manager; CQC compliance; ops are employed. HR is under service agreement in order to save the company overheads and was due to be reassessed and go on an employed basis shortly.
Ben Jones :

So which parts are directly affected by the employer's decision?

Customer: HR, integration! and operations
Ben Jones :

ok, so are any of your duties as an employee (ignore the self employed ones) being amended?

Customer: Yes, so contractually I am effectively being demoted.
Customer: This decision has been made by the board after receiving a report from an external HR Consultant who advised the board that because I am married to the MD staff cannot hold confidential discussions with me. The consultant has not spoken to any staff members and the resulting recommendations which have led to the board decision are based on perception of the consultant and not by fact based evidence. The whole team perceive me as the HR manager. The board wish to appoint another HR manager and have that person do the Ops and CQC compliance.
Customer: i am also a major shareholder in the company...
Ben Jones :

There will be two separate issues here because you are employed under two contracts, one as an employee and one as a contractor. Your rights I each will be separate. For example, you cannot claim for unfair or constructive dismissal as a contractor so any changes there can only be pursued as a breach of contract if they go against the terms of your agreement with the employer.


 


As an employee, you will have additional rights. First of all I should clarify the difference between unfair and constructive dismissal. The former is when you are actually dismissed by your employer without a fair reason or a fair procedure, so unless you are being dismissed you cannot claim for that. The latter is where you are actually forced to resign because of a breach of contract by your employer so this is the one that would be most relevant in your case, considering the employer does not actually go ahead and dismiss you.


 


A common breach by the employer in a constructive dismissal case 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.


 

Customer: Thanks. I'm raising a grievance next week. I would prefer a settlement agreement rather than ET and will be claiming discrimination and constructive but as you say constructive is rarely successful.
Ben Jones :

the grievance is the first step as mentioned, then you evaluate your options

Customer: Will do. Once grievance process exhausted if no resolution will go to employment lawyer locally in Bristol and go for Settlement if that fails go for Early conciliation and ET... Have a good day... Better go and formulate this grievance against the board of directors.
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