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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46785
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was promoted in September to an Ops Manger position, I was

Resolved Question:

I was promoted in September to an Ops Manger position, I was not informed there was a probationary period, they have now informed me my Probationary period is ending I have not achieved an adequate level. I have had no support been isolated not received any coaching even though it was a new role for me .I was given an action plan on Jan 9th that was not specific more of an instruction list. My Senior manager was on holiday for two weeks in February and I was on holiday for a week in February. I had a meeting on 6th February where no specific issues were raised .I was then asked to a meeting on 6th March where I was informed I had been in probation and was not achieving .I advise I had not been informed and that it was a legal requirement and was told it was an admin error and didn't matter .I haven't been the correct training and support I needed and my companies Equality and Diversity policy says I should have received.I have been isolated and had a lot of negativity this has made me suffer from stress and has not helped me in my role. What can I do
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. How long have you worked for this employer?

JACUSTOMER-8odku9cu- :

15 years

Ben Jones :

ok thanks let me get my response ready please

JACUSTOMER-8odku9cu- :

ok there are a lot of other issues

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). In your case you can also rely on the probation issue because that in itself can amount to a breach of contract.

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.


JACUSTOMER-8odku9cu- :

ok I am reading this I have not been dismissed

Ben Jones :

I know, this is constructive dismissal - you do not have to be dismissed, I know it has the word 'dismissal' in the term but it happens when you resign

JACUSTOMER-8odku9cu- :

ok sorry I have asked to have the six month probation start again with the correct support and mentoring they have offered 3 months with no recognition of stress caused

Ben Jones :

the stress issue can be dealt with under the grievance policy and a reminder that under health and safety regulation an employer has a duty to reduce or prevent stress to employees

JACUSTOMER-8odku9cu- :

if I raise a grievance would it be under breach of contract

Ben Jones :

yes also the stress issue as mentioned above

JACUSTOMER-8odku9cu- :

ok so if I send a grievance under the breach of contract trust and confidence and list the issues with no support training etc that would be enough

Ben Jones :

yes that would be the starting point, then you have to see what the outcome is - if there is no resolution that is when you have to think about the constructive dismissal route if necessary

JACUSTOMER-8odku9cu- :

do I need to set out what I want to resolve the situation

JACUSTOMER-8odku9cu- :

the fact that I was not informed of a probation period would that come under the same heading as I thought it was alegal requirement under employment law

Ben Jones :

yes, you set out your complaints and what ideally you want done about them

Ben Jones :

yes the probation issue is the breach of contract

JACUSTOMER-8odku9cu- :

is there anything else I need to know or do

Ben Jones :

not at this stag - this is what you need to know t okick start the process and deal with these issues, the next steps will depend on how this process goes

JACUSTOMER-8odku9cu- :

ok thank you

Ben Jones :

you are welcome

JACUSTOMER-8odku9cu- :

c

Ben Jones :

.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46785
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

I have just asked another question 40.00 has bee ntaken from my account and you have not responded

Expert:  Ben Jones replied 2 years ago.
Hello you can access that question here:
http://www.justanswer.co.uk/employment-law/8zvty-went-meeting-agreed-not-give.html
I have asked a query so if you could please reply on there then I can assist further, thanks

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