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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I am currenly suspened from work incident that

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Hi,
I am currenly suspened from work for an incident that happened at work back in December, thus I have been suspened for 3 months. Last contact with my employer was over 3 weeks ago when I attended a meeting with the investigational officer. Prior to the suspension in December I had return back to work after having 4 months off work becasue I was diagnose with General Anxiety Disorder (GAD). This came about becasue of a number of things happening in my personal life. Now it is due to work that my GAD kicks in. Upon my return to work after talking with Occpaitional Health, I should of had a risk assesment done and regular meetings with a manager. Neither of these where carried out.
I was just wondering if I could sue my employer for constructive dissmissal? As I feel the way they have been dealing with current case they haven't been following the prodcure and I feel 3 months (and still no out come) to investigate this is rather excessive.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
How long have you worked there?
Customer: replied 1 year ago.
I have been with the organisation for just under 3 years
Customer: replied 1 year ago.
however it is a continuation of service as I work for the NHS, so in total I have worked for the NHS for 8 years.
Expert:  Ben Jones replied 1 year ago.
Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query. First of all it is important to consider that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc. Saying that the employer should not just go and suspend unless necessary and any period of suspension should be as short as possible and kept under constant review. During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing. On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal. Whilst there has been a delay in resolving this matter or taking it forward, there could be reason for this, such as any relevant people dealing with it or providing evidence being absent, so it is important to try and gather some information as to why they are not progressing this as quickly as one may expect. Constructive dismissal is indeed an option but that is not an easy claim to pursue so you must be confident that there are no plausible reasons as to why there has been such a delay and the employer has acted in an unreasonable manner, to an extent that you have been left with no other option but to resign. This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal, what you have to show and how you can pursue this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. As mentioned, 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.

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