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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45363
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been off work with depression, and muscular skeleton

Resolved Question:

I have been off work with depression, and muscular skeleton problems returning in November last year and since not had any more sick days. I had a further return to work meeting this week where they decided I was to work in a windowless office without my own desk, sharing one and a chair when it wasn't occupied by someone else. Occupational health recommended I had certain things in place to assist me. I then found a letter which my boss wrote to occ health claiming I wasn't up to the job, incapable of taking instruction, a liability etc. and how could she get rid of me - psychologically not fit, physically not fit, get me to hand in my notice etc. She says there are lots of complaints about me. I haven't had any complaints to my face, nor am I incapable, but actually very good at my job but I tend to question why a job is done a certain way as I have a lot f experience with databases etc. and could streamline the work and make things easier and more accurate etc. She doesn't like me really because of this and wants to get rid of me. I have written a formal letter to her boss. I was very upset to read this. I know what she says is not true but as you know, getting other staff who are intimidated by her to speak out will be difficult. Do I have a case?  I am now on annual leave and will have surgery next week so will not be at work for 5 weeks.  I don't want to work with her anymore and would like redeployment.  My employer is NHS

Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

2 yrs

Customer:

hello

Customer:

he went off line before i answered.

Customer:

Where are you?

Ben Jones :

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.

You can also try asking for redeployment but that is not guaranteed to happen as it would depend on what is available at the time. So you can ask for it but if it is not possible then you are looking at the constructive dismissal option.

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:

I have her questions to the occupational health asking how I could be laid off - i.e. psychological or physical or hopefully me just handing in my notice!

Customer:

I think I'm also protected under Health and Safety - negligence - putting me somewhere detrimental to my health against recommendations by the occupational health nurse.

Customer:

If I went "Without predjudice", how much compensation would I be entitled to. I am part time and earn just over 10k a year

Ben Jones :

No one can say how much you may get that way - that depends on what the employer is willing to give - they do not have to agree to anything, so if they do agree to something it would be to an amount that they are willing to part with and that could be anything. They could refuse to entertain such negotiations altogether and just let you take them to tribunal

Customer:

Ok. Thanks. I'm just a bit unsure of what exactly a serious breach of contract is

Ben Jones :

in this case it is the breach of trust and confidence, potential discrimination too

Customer:

Thank you. :-) I'll pay you now! lol!

Ben Jones : You are most welcome and thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45363
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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