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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was suspended on the 14th January and dismissed at a hearing

Resolved Question:

I was suspended on the 14th January and dismissed at a hearing on the 29th January. After 5 weeks they appeal hearing was Friday the 6th March and today the decision to suspend me has been overturned and I can return back to work. However I have not had an outcome of my formal grievance of bullying and they are still investigating a proteacted disclosure I made 5 weeks ago. if I resign can I claim constructive dismissal, I have been with the company for 8 years.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are you going to use as a reason to resign?
Customer:

I am unable to return to work with the line manager still in place, after all this time and the stress I have been under. Also the grievance was raised in relation to bullying from the manager in question and has not been resolved yet.

Customer:

I have to pick my daughter up from school and will be back in around 3.30

Ben Jones :

Hi sorry I was offline by the time you had replied.

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).

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.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

Hi

Customer:

Thank you for that, when you say :"This could potentially amount to constructive dismissal" are you referring to the dismissal and subsequent overturn of that decision ?

Ben Jones :

No, constructive dismissal only occurs if you resign. If your appeal is successful and you have been reinstated then the dismissal 'vanishes' so to speak - you were never dismissed. So you would now need to resign and then you can claim constructive dismissal

Ben Jones :

Oh sorry, I see what you mean now, no not that necessarily, it is more the grievance and the lack of any action by the employer to deal with it - the dismissal has been overturned so you have resolved that and to use it as a reason to resign and claim constructive dismissal is unlikely to be a strong enough factor on its own

Customer:

Thank you. Sounds like I don't have many options I guess.

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