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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46153
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Should my wife resign first and the proceed to a

Customer Question

Should my wife resign first and the proceed to a constructive dismissal claim? or wait until
her position has totally been changed?
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ben Jones replied 7 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 7 months ago.

Please can you provide some background information? Please can you also tell me how long she has been employed in her current position?

Customer: replied 7 months ago.
She has been with her current employer now for 3 years has operations manager firstly back of house in charge of House Keeping and Engineering and the recently moved to front office in charge of Reception, Telephonist and Reservations.
Apart from these responsibilities she has also been given the added responsibility of all additional works regarding the refurbishment of rooms and the basement area.
She was of work for a month due to a very serious personal problem and on her return was told that this project has been taken of her 'hands'
Very little support has been offered with this Role and my wife feels that her job is in real jeopardy.
Can you advise?
Expert:  Ben Jones replied 7 months ago.

OK thank you; please leave it with me. Thank you also for the live phone call request. I am unable to talk at the moment as I am in court today but please leave it with me as I will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46153
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 7 months ago.

Many thanks for your patience. For a constructive dismissal situation the following two elements must be 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).

So the breach must have occurred and she must accept that breach and resign in response to accepting it and being placed in a position to do so. The initial changes may not be serious enough but they could be followed by some further changes, which overall make her position untenable and she has to resign as a result.

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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