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Ask taratill Your Own Question
taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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I am facing a potential constructive dismissal situation, what

Customer Question

I am facing a potential constructive dismissal situation, what key steps should I take?
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Customer:

Hello my name is ***** ***** I am happy to help you today. How long have you worked for the employer for?

JACUSTOMER-ud8xp4no- :

5 months filling the role as an interim and then 1 year 8 months as a permanent employee

Customer:

So just over 2 years continuous service?

JACUSTOMER-ud8xp4no- :

Yes

Customer:

Ok what has been the problem?

JACUSTOMER-ud8xp4no- :

My role is Corporate Finance Director as part of a Finance Directorate that provides financial services to customers. I report into the Director of Finance "DOF". Defined responsibilities within my job specification have been allocated to consultants who are past acquaintances of the DOF without discussion or agreement with myself. When I have raised this as an issue as to why internal resources are not made available to me to fulfil my role the DOF has only stated that this is the way he wants to handle it. This situation has been brought to a head by myself in an overdue 1-2-1 with the DOF when I have raised a number of grievances. No responses were offered and in his agreement that the situation was not satisfactory he stated he saw no reason for him to change his approach. This meeting took place last month and in the subtext of a meeting for a different purpose the DOF informed me last week that my role was being put as risk and is likely to for part of a larger staff consultation exercise that is about to commence.

Customer:

So is your position that your role has been eroded and is now being put at risk of redundancy? What reason have they had for allocating parts of your role to others?

JACUSTOMER-ud8xp4no- :

That I did not have sufficient resources to handle significant new tasks that had arisen. My counter was to give me the resources and I will manage the new tasks but instead consultants were brought it who used members of my team to support them but reported into the DOF. In this connection there are no performance issues logged against me.

JACUSTOMER-ud8xp4no- :

As an aside I believe the DOF has a history of micro-managing and I also believe other grievances have been made against him by members of my peer group.

Customer:

Have you raised a formal grieavnce about this?

JACUSTOMER-ud8xp4no- :

Only to the extent of sending him a recent email with the statement "At the recent 1-2-1 I outlined a series of concerns/grievances regarding the way you were handling my role and responsibilities. Your offered no response at the meeting, or since then, and only stated that your saw no need to change your approach towards my role and responsibilities". I had thought of copying this into our HR function but decided against it at the time.

Customer:

How long do you think it is likely to take you to get another job at a similar salary?

JACUSTOMER-ud8xp4no- :

As a 60 year old in a £100k position I would say that the chances are not high !!

Customer:

Ok thanks, ***** ***** think that there is an element of age discrimination involved in the way you have been treated?

JACUSTOMER-ud8xp4no- :

No I don't think so, I believe it is more about control. As part of the issue I also believe that the organisation has lost revenue streams from financial services partly due to this management style. A recent re-organisation removed a significant part of financial services out side of the DOF's responsibilitiies which leaves him with a much smaller role. The activities in my area are increasing rapidily as the business is expanding in other areas. I believe his intention is to remove the risk to himslef by removing my role in a reorganisation.

Customer:

Ok the harsh truth of the situation is that it will be very difficult for you to prove a constructive dismissal claim in the circumstances you describe and it will be impossible to do so without first exhausting the internal grievance process, as the Tribunal expect to see the process exhausted prior to any claim being brought. Unless you can show some malice on the part of the employer a restructure such as you have described, would give rise to a fair termination on the basis of redundancy. You can obviously bring an appeal but legally a redundancy arises where the need for a person to carry out a role ceases or diminishes and this can include in the circumstances you describe. The reason I asked about your age is that the best case you can bring forward would be that this is unreasonable on the basis that it amounts to discrimination on the basis of your age, but as you do not believe this to be the case, there seems little merit in running such an argument.

JACUSTOMER-ud8xp4no- :

So would it make sense to raise my concerns outside of the Finance Directorate with the HR department?

Customer:

Absolutely

JACUSTOMER-ud8xp4no- :

...... and in a restructure would descrimation be applicable if other members of my peer group whose roles were changing but were not put at risk?

Customer:

only if the reason for this could be considered to be your age.

JACUSTOMER-ud8xp4no- :

.... but would it be appropriate for them to be appointed into new roles with changed responsibilities without such being open to competition?

Customer:

There is no need for an employer to externally or internally advertise posts.

JACUSTOMER-ud8xp4no- :

..... as an example a peer was under similar pressure from the DOF and I believe made a official complaint through HR. He was then transferred out of his role into a newly created role which wasn't announced or advertised and has been involved working on areas within my responsibility

JACUSTOMER-ud8xp4no- :

Re your reply does that mean appointments can be made without considering all suitably qualified applicants? Wouldn't that be discrimination especially if other suitable candidates are then made redundant?

Customer:

It's not discrimination but if it is done after the redundancies are announced or with the employer knowing they are impending it could render a subsequent dismissal unfair.

Customer:

To be honest I would throw everything in a grievance to them to HR threatening constructive dismissal and age discrimination if you like and you may be able to affect a reasonable settlement.

Customer:

I would not resign and claim construcive dismissal as this is harder to prove than unfair dismissal. If you are terminated by reason of redundancy you can then raise an unfair dismissal claim.

JACUSTOMER-ud8xp4no- :

OK I will give it some thought - thanks

Customer:

No problem, if you have household insurance it probably contains free legal advice cover which is worth a shot.

JACUSTOMER-ud8xp4no- :

Thanks again

taratill and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Jenny,

Just a point on clarification re your response "There is no need for an employer to externally or internally advertise posts." ..............where there is a formal recruitment policy that states "Appointing to a vacant post without advertising .... will only be the case where the initial selection for the post was made fairly and equitably, i.e. other people were also given the opportunity" does your statement still hold true. I should point out my job is within the public sector where scrutiny over governance and use of public funds is an important factor.

Expert:  taratill replied 2 years ago.
Hi it does as , generally speaking, subject to discriminating against an individual on grounds protected by the Equality Act 2010, the employer is free to recruit as it sees fit.
The employer is clearly in breach of its own policy here. If you believe that you should have been offered the chance to apply for a position then you could argue that it amounts to breach of contract that you were not offered the chance to apply.

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