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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45355
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have worked for a well known supermarket for over 18 years,

Customer Question

I have worked for a well known supermarket for over 18 years, I have witnessed ny duty manager not working his correct contracted hours and altering the clock sheets. recently my department was under 240 hours and things were not right in my back area I am led to believe my duty/store manager did not relate this information to my regional manger when he picked these issues up . I contacted my regional coach on several occasions to come in and see me so that I could explain to him what has been going on. so I was left with no alternative to email my regional manager and explain. I am led to led to believe my regional coach came in today with no notice and was overheard by one of my peers questioning I was off today the reason I take Thursdays off is that it is my transplant clinic day and I do not want to take time off work to attend. I can not face going into work tomorrow do you think I have a case for constructive dismissal
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Is the reason for you wishing to claim this just the coach's comments today?

Customer:

no, the comment was made by my duty manager to my coach, this was made by my duty manager to take away any blame from himself for the lack of support he has given me.

Ben Jones :

It is possible that this could potentially amount to constructive dismissal, however it may not be sufficient if it was a one off incident, unless it was extremely serious. 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, if it is serious enough 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 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. My main concern is that this may not necessarily be seen as being a serious enough act to justify instant resignation and you should try and resolve it through a formal grievance first because the risks can be quite high otherwise.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

hi

Customer:

there have been other occasions recently too. when I was under extreme pressure for lack of colleagues I text my store manager to let him know that my department was not as good as it should be due to the lack of hours his response was that I need to do something different and all range reviews have to be done over night, can I just add that I told him I was 70 hours short. I think the last straw was after the regional manager came who at the end of the year does my pdr rating, and was not told the full story about my hours and no support as I have an email from him on Wednesday explaining this to him. my store manager told me if I don't go full time that he would move of my department which I have given my heart and soul to and constantly work over my hours and not get paid for them. maybe this is sour grapes the duty manager in question regularly leaves work early and does not clock out and then clocks himself his out on the paperwork stating he leaves at a later time

Ben Jones :

You can of course resign and claim constructive dismissal but this is not an easy claim by any accounts - there will be risks involved and it would be entirely down to you to prove that your employer had acted in a way that breached your contract and left you with no other option but to resign. Also if you have not followed the grievance procedure first you would have to justify that too. So go through a grievance first and see if things get better and only then consider the constructive dismissal option.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45355
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 2 years ago.

I went into work on Friday and two of my peers said to me go and check the emails that my duty manager had sent.


the email consisted of


if lisa had been in work today I would have strangled her, due to the email she sent mark parrot(which is the coach in question). Mark has said he is fed up of lisa sending me emails the only emails I have sent is to request an uplift of stock I sent him three texts asking him to come and see me due to the recent visit and one of the others were raising my concerns over my reputation over the last visit as I didn't feel my regional manager had all the facts. it also goes on to say from my coach that I am full of excuses and blame culture in any of my emails did I mention blame just explained facts. the email also goes onto my duty manager and coach in agreement of finding a full time manager who will react to the pressure with no discrimination.


the second email is to my rom where my duty manager states he is seething about the email I sent him and then goes onto explain why I was so short and that I get support every night of 8 hours which I know this is not true as I have colleagues who work for me and are willing to give statements. in my emails to my rom was just saying that I was minus 240 hours and it was an exceptionally busy month and when he comes in for next visit he will hopefully see the improvement now that my hours are in the right place.


so on Friday I was called into my managers office where my duty manager sat me down and said what give me the right to email my rom over his head and the store managers head. I told him I really don't know what the issue was just a courtesy email. he replied no its not you were telling him you were not allocated enough hours I said no I never I responded to him telling him it was due to sickness and holidays obviously he had not seen the response. at this time I got really upset saying he didn't understand that this was my reputation and that I feel I am being forced into going full time or if I don't I will be moved he replied yes this is true at this time I walked out saying I cant take anymore.


I then rang him to say I was going home as I was too stressed.


 

Expert:  Ben Jones replied 2 years ago.
ok this is all evidence that you can use to your advantage but it does not change your legal position much - whilst constructive dismissal is still an option, the grievance route should be the first step you pursue for now.

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