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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46750
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am the managing director of t he UK susidiary of a

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I am the managing director of t he UK susidiary of a privately owned US firm. I have always reported into the CEO and have been told that my position will now report in to a sales director. I am very unhappy with this as I was not employed on that basis; my contract has references to performing duties as per instructions of CEO, me performance is subject to CEO review, even holiday approval is subject to CEO approval. I am v unhappy that my position is being demoted within the organisation. What should I do?
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 8 months ago.

How long have you worked there for please?

Customer: replied 8 months ago.
coming up to 2 years
Expert:  Ben Jones replied 8 months ago.

OK thank you for your response. As we are practising lawyers and do this in our spare time there may be a slight delay in getting back to you as I am in the final day of a complex trial today so may not be out until late. Rest assured that I am dealing with your query and will respond as soon as I can, no later than tomorrow at the latest. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you for your understanding

Expert:  Ben Jones replied 8 months ago.

Many thanks for your patience. The usual way to pursue this legally would eventually be through a constructive dismissal claim. This is where you are forced to resign as a result of the employer’s unreasonable behaviour. However to be able to claim you would need at least 2 years’ service. Depending on how long you have to go before you reach that milestone, you could try something else first, to allow you to get over that requirement.

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. However, as mentioned you need 2 years service to do this so you may wish to go through the grievance procedure first, to buy you some more time to potentially get you over this 2 year requirement.

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.

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.

This is your basic legal position. I have more detailed advice for you in terms of the steps you must follow if you are to pursue constructive dismissal, 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

Expert:  Ben Jones replied 8 months ago.

Hello, my response should be visible on this page. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46750
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 8 months ago.

Thank you. If you were to resign and claim constructive dismissal then you must issue a claim within 3 months of your termination of employment. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

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