Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Thank you for the background information. Please can you also tell me what the ideal outcome would be for you in this situation so that I can advise?
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Many thanks for your patience. First of all you must consider what the terms for your return were. For example, when you go on secondment the employer may agree with you that you would be guaranteed your old job back on return or that this is not possible and that something else suitable may be offered to you instead. In either case if you are to return and your job is no longer there and nothing suitable was on offer, then you could indeed try and push for redundancy.
The issue is that you cannot force the employer to make you redundant. You can request that but they cannot be forced to go through the redundancy process and actually terminate your employment for redundancy. In that case what you may have to do instead is resign and claim constructive dismissal, seeking compensation for being forced out of the job. The compensation would be similar to a redundancy payment and may also cover future loss of earnings, depending on how long you are out of a job for.
This is your basic legal position. I have more detailed advice for you in terms of how to initiate the constructive dismissal process, 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
I cannot give you prospects of success as you need a formal case analysis for that and I have very little detail to go by, so I can only discuss the procedure
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.