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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44391
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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2 years ago I was forced to change my employment contract. I

Customer Question

2 years ago I was forced to change my employment contract. I was told that my weekend management contract was no longer viable. After a lot of pressure and resistance I did change my days and increased the hours that I did. I knew that it would be extremely difficult to fulfill my new role on my new hours as I'm in retail and my full time colleagues work at least 60 hours per week. My contract is 32. I'm constantly stressed and have to bring work home and call into work when I'm off. I can't afford to leave. I have been with the company 24 years. Do I gave any legal options?
Submitted: 3 months ago.
Category: Employment Law
Expert:  Remus2004 replied 3 months ago.

What are you hoping to achieve?

Customer: replied 3 months ago.
I suppose if I'm honest I want to see if I'd have a case for constructive dismissal if I did leave.
Expert:  Ben Jones replied 3 months ago.

Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. Have you approached the employer about these issues and the stress you have been under? Have any options to resolve this been discussed?

Customer: replied 3 months ago.
Not recently but I did express great concern via an email when my contract was changed. I worked in the role full time for many years before going to my weekend role which I was in for 9 years. It's all consuming so I knew it would be as hard as it is because that's the industry. Everyone is under pressure but my colleagues can stay as long as is needed to get the job done often 12 -15 hours per day. I have to leave for school pick ups everyday except Monday when generally I work 3 hours extra to catch up.
Expert:  Ben Jones replied 3 months ago.

Thank you. It is a difficult position and certainly not the only job which may be exposed to such issues. In general, this can be challenged in a number of ways, although it is difficult to say which is the strongest option and it may come down to a combination of a couple or more.

First of all, you can approach this under the law on stress. However, whilst stress in the workplace is becoming an ever-increasing problem, no specific legislation deals with it. The rights of employees in these circumstances are scattered across various legislation and common law examples.

A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

Secondly you can approach this under flexible working legislation. The right to make a flexible working request applies to any employee who has been employed by the employer for at least 26 weeks.

Examples of the changes that can be applied for in a flexible working request include:

· A change to working hours

· Change to working location

· Job-sharing

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

So at least you have the right to make an application and then the employer has to formally consider it.

Finally, you can challenge this under the working time rules, where you can only be expected to work a maximum of 48 hours a week and even if you have opted out of this limit you can opt back in at any time without being penalised. Your contract may be for 32 hours but the additional time working will also be included. This could help you reduce your workload to an acceptable degree.

If all fails then your only option apart from an internal grievance is constructive dismissal, although you could try and negotiate a settlement to exit if necessary.

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 to you 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

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44391
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 3 months 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.

Customer: replied 3 months ago.
Thank you Ben. I think I'll consider the 'off the record' conversation. Is there a format that you would advise I apply to the conversation. This will be a very difficult conversation as high stress is accepted and I'll be made feel that it's my problem so I'd like to prepare a script in advance. Should I go directly to the head of HR or to my immediate boss?
Expert:  Ben Jones replied 3 months ago.

there is no particular format, but usually you would raise the issues and your rights and identify how they are potentially breached here and then state that instead of taking this further you would prefer a settlement and that would be the best option for both parties. Do adopt a soft and wooly approach though, you don't want to go i there in an aggressive mood and demand a settlement as they are more likely to refuse then. Go to your boss first and if required he will involve HR

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