Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
How long have you worked there for all in all? Please can you also tell me how long after initially starting were you transferred? Thank you
OK thank you. 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 and 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.
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Many thanks for your patience. Looking at the terms you supplied, they state that at the end of the tour of duty you would be expected to transfer to an operational post, with an expectation on the employer to offer you one. So the only reference in terms of your move back to an operational post is that. It does not state that an offer may be made or that it is not guaranteed, it specifically states that a suitable post ‘will be offered’. This is a wording that indicates a guarantee, not a conditional statement. So if the employer is not offering you such posts you may argue that they are acting in breach of contract. This could allow you to consider taking the matter further, for example through a constructive dismissal claim.
This is your basic legal position. I have more detailed advice for you in terms of the options you have to take this further and what you need to do, 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. the main option or you here would be 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.