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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Good evening . I really need your advice. I have been working

Resolved Question:

Good evening . I really need your advice. I have been working as a waiter for 8 mounth in a restaurant. I used to be chef before. Now my operation manager think i can not do this job and he want to send back in the kitchen as a chef. I do not why ???? My general managers do not have any problem with me. I have not got any complain from my customers. The quastion is : Can he make it or againts by the law if I do not want ?? Many thank you for helping
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Were you a chef in the same restaurant?
Customer: Hello. This is the quite big compony. I was working in the kitchen 2.5 years and after i left. I was a restaurant in central london and the compony opened the new restaurant then i have requested a transfer for there. When i left the kitchen last year i learned a waiter position and a bar position as well in 4 mounth. That is why i was the " all rounders" award in the compony. The problem is i do not know the operation manager does not like me and that is why he want to send back in the kitchen or maybe my job is not good nut i do not understand . I have not got any wrong feedback of my work.
Ben Jones :

So just to clarify - your current employment with them, after the break that you had, is for 8 months? How long was the break between this employment and the last one?

Customer: Ok sorry . I explain everything form the begining. I am working in a chienes restaurant company which is " LTD" \ i do not give a name of the compony\ . I started 25 of january 2011 in the kitchen as a kitchen porter after as a chef beacuse of my poor english . I asked my deputy general manager that , can i be a waiter beacuse my english is would be enought i think. I got the trial shift , i am a waiter from 1 of september 2013. When i was learning everithing what i had to learn as a waiter i did . I passed a waiter test, and than when i was learning as a waiter I had a opportunity to learn as a bartenter. I passed the bartender test as well. I learned 2 kind of position in 4 mouth. Every year we have a yearly compony party and the head office choice one person who is a winnner on diffrence positions. I was a winner of the " all rounders" 2013 . Beacuse of a lot of feedback from my general manager what did i do and learn. I have got a information about the new restaurant what it opened in london and i wanted to work there beacuse is near from my home. Before i got traning from everything like a refresher traning and then we opened the new restaurant 3 of march 2014. I am working there as a waiter for 3 mounth. Actually the same compony just differend restaurant then i have been working for 3.5 years on this compony. My general manager had a meeting with my oparation manager who said to him , i really hard worker and he beliveit it , but he see i do not entertain the customers and ii do not try to make a kind of friendship with them because it is good idea for make a regular cestomers. He said to my general manager if i can not be like a " fanfare" then he want to send back to the kitchen as a chef after 8 mounths i been a waiter. I do not know is it not against by a law beacuse he want to take my position form me and judge me like this without any real reason beacuse i can not see any reason . I have never got any complain from the costumer beacuse of my english or anything else. Most of compation what the restaurant done with drink or food i was in the top 3 . I got a wow it means good feedback from the customer 2 week ago by email. On the last compation i was the secound and my general manager spoke with him today and show my feedback and the information about the compation to him and said to my general manager : He is coming any day he will check me . Everyting what i did it is not enought i see. I think that is all my story , i do not know what should i do , try to do something or find the new job. That is why i need your knowledge. Anyway thank you for helping
Ben Jones :

Ok thank you for clarifying. You will have certain rights and these will very much depend on what your contracted position is. For example, if you had a written contract in place which said that you are a waiter and it did not mention anything in there about the employer’s ability to move you around, change your job and so on, then asking you to move from being a waiter to being a chef would amount to a breach of contract.


 


Even if you did not have a written contract in place, if it was always understood that you had taken on the waiter job on a permanent basis, the same rules would apply and being moved to another position when you were supposed to be working permanently as a waiter would amount to a breach of contract.


 


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.


 


Hope this clarifies your position?

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 2 years ago.
Hello Gergo, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you

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