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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46791
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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After working company years I applied

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After working for my company for 4 years I applied for flexible working hours to go part time and study fulltime. I submitted my application on 19th March due to start university in Oct.
I understand by law my employer has to make a decision within 3 months including any appeals made. After following up numerous times my employer got back to me on 22-Aug and declined my application, 5 weeks before I begin my course.
This has left me no choice but to give them my resignation (4 weeks notice) and follow an appeal hearing. Due to the lack of communication this has caused me stress knowing that I have resigned with no job in place.
I went off sick with stress for 8 days while considering my options to resign. I feel I do not have a choice as my studies due to start in October require 40hours a week. If only they told me in June when they should have.
Where do I stand with my constructive dismissal case?
I had my appeal today and told them the reasons for my resignation and I feel it's constructive dismissal, they have issued me a disciplinary for my sickness which I am to attend on Thursday. I did not tell them I was off for stress but now feel I should have.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What appeal hearing were you pursuing - was it for the flexible working application?
Customer: replied 1 year ago.

Yes the appeal hearing I attended today was for my flexible working. Let me know if you have any questions at all.

Expert:  Ben Jones replied 1 year ago.
Hi sorry my connection dropped earlier. The right to make a flexible working request applies to any employee who has been employed by the employer for at least 26 weeks. When a formal request is made, an employer can only reject it on a limited number of grounds. These are:· Planned structural changes· The burden of additional costs· A detrimental impact on quality· The inability to recruit additional staff· A detrimental impact on performance· The inability to reorganise work among existing staff· A detrimental effect on ability to meet customer demand· Lack of work during the periods the employee proposes to work In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to the reason used. However, when selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged. The time lines are as follows:· arrange a meeting with the employee within 28 days of receiving the application to discuss the request.· notify the employee of their decision within 14 days of the date of the· if the request is rejected, inform the employee of their right of appeal within 14 days of receiving this rejection· hear the employee’s appeal within 14 days of being informed of the employee’s decision to appeal.· notify the employee of the decision on the appeal within 14 days after the date of the meeting. You have now resigned and claimed constructive dismissal and this is an option but not always easy to pursue. It 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. Now that you have resigned you must approach ACAS first to use their free conciliation service before you re actually allowed to go to tribunal. So you must try and settle with the employer with the help of ACAS and only if that is not successful would you be given permission to go to the tribunal. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Hi Ben,

I appreciate your detailed response covering the facts involved. I just need clarification on a few details.

I would like to mention I have spoken to ACAS prior to my appeal and they advised that I follow through with any internal processors first, I will wait for the outcome of my appeal and get back in touch with them if needed.

You mentioned a case of constructive dismissal is a difficult one to pursue and I have also read that elsewhere but you mentioned the two elements;



  • 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.


I would like to mention that my constructive dismissal case would not be due to me disagreeing with my companies decision to decline my request but rather breach of policy in failing to follow the time lines and putting me in a situation where I have had to resign to not affect my studies.

Can you comment if this is something that falls under a serious breach of contract by my employer and if this is worth pursuing as it feels like I will be jobless soon.

Thank you,

Kirk

Expert:  Ben Jones replied 1 year ago.
Hello Kirk, this is a breach of a statutory procedure and in turn could amount to breach of trust and confidence by the employer (this is basically the catch-all breach that could encompass any serious breach by them). So yes, it can be used to initiate a constructive dismissal claim but I cannot comment on how likely you are to be successful because once at tribunal there are many factors taken into account which would be impossible to discuss on here. So I would say use ACAS to initiate the free conciliation service and see how you get on with that but then think carefully about proceeding to tribunal, especially as you will have to pay some £1,200 or so to take it to a hearing. Hope this clarifies things a bit more?
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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