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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45349
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am worried about unfair dismissal. I am a hotel manager

Customer Question

Hi, I am worried about unfair dismissal. I am a hotel manager who has never had any performance issues before. I have worked for Premier Inn for 10 months but have continuous start date with Whitbread since 2010. This week I had a new manager. After one site visit she has conducted a formal investigation on me and now my specific job has been advertised on our company website and another manager has suddenly taken over some of my responsibilities without me even being informed.The investigation wAs for poor performance and behaviour. In the site visit she wanted me to cut the staffs contracted hours (reducing sick team members contracts to 0, not acknowledging I need 2 people on site at all time even though this is our safety policy) I professionally and calmly expressed my concerns but she kept talking over me. In the investigation she claims that this was a disagreement and my fault. I believe it is unfair as I have not been given any chance to improve any performance areas ( a lot of things she wrongly jumped to conclusions about anyway and I have lots of evidence any area where we are not achieving a result is not performance related on my behalf.) and she has not had an impartial person investigate- she has done it herself and twisted events. I am waiting to see if I am given a disciplinary invite. Do you have any advice?? Many thanks, Andy
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
Hi
Thank you for your question. My name is ***** ***** I will try to help with this.
What would you like to know about this please?
Customer: replied 1 year ago.
Hi I would like to know If I will have grounds for unfair dismissal if I were to be dismissed and if I have a case for constructive dismissal. Many thanks
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. So are they treating these issues as misconduct or a performance issue?
Customer: replied 1 year ago.
I don't know yet, i havn't received an outcome from the investigation. I will find out tomorrow. I read that if a situation becomes untenable then I could resign and claim constructive dismissal and that I shouldn't wait too long as it looks like I am accepting the new circumstances. If my new boss does give me a disciplinary letter tomorrow could I resign then and have enough of a case for constructive dismissal? How long should I wait? I know it's very circumstantial I guess I just wanted to know from your experience of constructive dismissal claims what are the things I need to be sure of before I resign if it does become untenable. Many thanks
Expert:  Ben Jones replied 1 year ago.
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. From experience, such claims are difficult. If you are facing dismissal, then it is usually best to wait for that and claim unfair dismissal rather than resign and claim constructive dismissal. That is because in an unfair dismissal claim it is down to the employer to convince the tribunal they had a fir reason for dismissal, whereas in constructive dismissal it is down to you to show that there was a valid reason for you to leave. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45349
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 1 year ago.
Great, thanks for your help. I won't pursue constructive dismissal. I'll wait and see if they dismiss me and also raise a grievance that my position has been advertised which is breaking trust.
Expert:  Ben Jones replied 1 year ago.
Yes that sounds like a sensible approach. All the best

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