Hello, sorry I was away for a few days. Can you please let me know if it was agreed that after the sabbatical you would be guaranteed your old job? Also why are they not allowing you to return to it, does it no longer exist? Is someone else doing it?
Hi there, first of all there is no automatic right to return to your old job after you have been off on sabbatical leave. If possible they should try and allow that but even if that was a possibility it is not legally guaranteed in any way. The only time it would be guaranteed would be if you were given such a specific promise under the sabbatical agreement or you were given some other formal promise which guaranteed your return to that job. Without any such promise I am afraid the law does not protect you very well.
In your case you were simply told that they hope you will return to the same job or one of equal status but there was never any guarantee given. So you cannot point to anything which gave you a guarantee to return there and this will be left at the employer’s discretion. For example they could decide to keep your replacement on permanently if they wanted to. I would say that the only situation in which you may be able to challenge it is if the job was available and vacant and they deliberately prevented you from returning to it with no reasonable explanation, then it could potentially amount to constructive dismissal.
This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it can apply here, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. Constructive dismissal 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 and to be honest it will be rather risky in the circumstances as there was no official guarantee that you will get your old job back.
You are welcome, all the best