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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47368
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a senior executive in a large multinational. My position

Resolved Question:

I am a senior executive in a large multinational.
My position has been changed beyond recognition and my R&R reduced
Dramatically. There are no performance issues and I have emails
from Board Members and senior managers as evidence.
Reason for change is new senior manager looking to extend his portfolio.
I currently report to the ceo and I am now being asked to report to this
new senior manager, who is currently same level as me in the organisation.
I have an excellent reputation in the business from Chairman down and do
not understand change. My view it is constructive dismissal, do you agree,
If so how can I best prepare my defense. Can you recommend a lawyer ?
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 there for?

Customer: 4 years. I have UK contract. I am a director in 11 of the business legal entities. Including UK.
Ben Jones :

ok thanks let me get my response ready please

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.

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.

In terms of getting a lawyer involved this is not yet necessary as one can only really get involved once the claim has been issued. Before that you have to go through CAS and use their early conciliation service to try and negotiate a settlement. We cannot recommend lawyers as these must be independently chosen by you but you can go through the Law Society’s search service to find one local to you:

http://solicitors.lawsociety.org.uk/

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:

Ben I do not know if you received my response, can you confirm please

Ben Jones :

I am afraid I have not, please try again

Customer: Ben. My Q was. Why would I resign without notice ? I have a 6 month notice period which I would want to enforce, why would I give that benefit up ?
Customer: Ben. Will leave this open until you have had s chance to respond to my home mail. Regards.
Ben Jones :

Hi sorry some issues earlier did not show up your follow up query. The way constructive dismissal works is that you are arguing the situation was so bad that you could no longer continue working there and were forced to resign immediately. If you were to go on and work your notice period then there is a strong suggestion that things were not that bad and you would have been able to work for another few months which would counter any argument that things were that bad that you had to leave. So if you are to claim constructive dismissal you would not be expected to work your notice period and doing so could certainly jeopardise your chances of claiming successfully. If you were to pursue a claim you could include the notice period in it

Ben Jones :

Hope this clarifies your position?

Customer:

Ben

Customer:

Yes it does. Many thanks. I am happy with your advice. Thanks.

Ben Jones :

you are welcome, all the best

Customer:

Ben. I have punched good service. Many thanks.

Ben Jones :

Much appreciated, thanks

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