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seanferguson13
seanferguson13, Solicitor
Category: Law
Satisfied Customers: 31
Experience:  3 year qualified solicitor with expertise in UK taxation.
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Hello I was spoken to in a derogatory manor in front of colleagues

Resolved Question:

Hello
I was spoken to in a derogatory manor in front of colleagues yesterday by the MD over the purchase of a sandwich lunch for the Sales Meeting which takes place tomorrow. Believe it or not, I had ordered them from the wrong place according to the MD. I had selected our usual provider with whom it takes 1 minute to organise and who presents it ready to go with plates, glasses, juice etc. This was vs Waitrose (the Sales Manager's preferred choice) which means I have to trawl through the aisles on line and then when it arrives, I have to present it and serve it up. I do not feel as HR Manager, that I should be having to spend hours organising and serving up lunch to my fellow managers, especially when the request has come from an equal. I support the HR function single handedly and it makes a mockery of my authority when people see me washing up plates. I was forced to make the Sales PA (who was also my best friend - not anymore needless to say!) redundant in 2012 and since then have gradually inherited her duties which I feel is unfair and unjust. I have received no additional reward for being promoted to HR Manager despite my seniority and the fact that I have studied my CIPD post graduate qualification for 3 years. I just don't understand what my role is any more. I was presenting to the President of the company and the founders, together with the European General Managers last week on Talent Management which received high commendation - this week I am being chastised in public for organising lunch for our reps through the wrong provider! I had a week off in 2013 with stress and have been on anti-depressants until very recently.
Going back to yesterday, it was lunch time - I left the building extremely upset but in control. I am the HR Manager and felt I was treated like the office junior. I developed a migraine and went home immediately. I sent the MD an email explaining why I was not in the office that afternoon and explained that I felt the way she had spoken to me was humiliating in front of colleagues and had left me feeling physically sick. I have since received an email from a fellow manager requesting that I attend an investigatory meeting to discuss my comments. This issue is a culmination of a number of issues which have lain dormant for the last few years and I honestly think the trust and confidence between my boss and I has been damaged. This was the last straw and I am considering claiming constructive dismissal but need some advice. I have been with the company for 14 years, and am on the Senior Management Team. My contract still states that I am PA to the MD, (which I was until 2012) . A 2nd contract was issued stating HR Manager with 3 months notice but the MD insisted it stated HR Manager/ PA to the MD, but I refused to sign it.
My question is if I resign and claim constructive dismissal, what are my chances of success. It seems such a petty reason to quit, but they have pushed my buttons so many times in the past couple of years and failed to treat me fairly compared to the other members of the senior management team in terms of reward. They have also tried to change my terms and conditions which I did not accept which didn't go down well so I think they just want me out.
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  seanferguson13 replied 2 years ago.
seanferguson13 :

Hi there

seanferguson13 :

I will help you with this matter.

seanferguson13 :

Basically you are able to claim constructive dismissal if you have left your position without notice by reasons of the employer's conduct. In reality this means a confuct which constitutes a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

seanferguson13 :

This can be further broken down by looking at three points which must exist if constructive dismissal is to be claimed:

seanferguson13 :

The following elements are needed to establish constructive dismissal:




  • Repudiatory breach on the part of the employer. This may be an actual or anticipatory breach, but must be sufficiently serious to justify the employee resigning.




  • An election by the employee to accept the breach and treat the contract as at an end. The employee must resign in response to the breach.




  • The employee must not delay too long in accepting the breach, as it is always open to an innocent party to "waive" the breach and treat the contract as continuing (affirmation) (subject to any damages claim that they may have).



seanferguson13 :

Repudiatory breach - On your facts it would appear that your employer may have breached her implied obligation to provide you with a suitable working environment insofar as their conduct amounts to unacceptable behaviour. In addition they must "reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance". Given there have been a series of events, have each been properly investigated and a resolution sought? If not there could be a further breach here. Finally, it appears at the very least that they have breached their obligation of "mutual trust and confidence" which means they have conducted themselves in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee"

seanferguson13 :

Election to resign and not waiving - Although these issues have been ongoing, you will not be deemed to have "waived" their breach of contract if you are resigning because of a "last straw" incident. A breach of the implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the "last straw" need not itself be a breach of contract; the question is whether the cumulative series of acts taken together amount to a breach of the implied term. This is a long held principle of common law.

seanferguson13 :

As for damages, the starting point for a claim for damages for breach of contract in a constructive dismissal claim is the same as that for any other wrongful dismissal claim. The principle is that the employee should be put in the financial position they would have been in had the contract been performed lawfully.Therefore, presuming that the employee resigned without notice, the measure of damages will usually be the value of their net remuneration package for their contractual notice period.

seanferguson13 :

If you are intended to act, then you must resign fairly quickly. But before you do so you must seek advice from a solicitor who can look at your position in detail.

seanferguson13 :

I can put you in touch with someone if you cannot find someone suitable.

seanferguson13 :

Do you have any further questions?

Customer:

Hi

Customer:

Thank you. I have been trying since yesterday afternoon to speak with a solicitor without any luck - (my employer seems to have fingers in many pies), hence my question to Just Answer. All sound advice - I have been invited to an investigatory meeting which I guess is the first step. I will remain off sick until I can gain some expert advice. Would be grateful for a recommendation.

seanferguson13 :

Very best of luck. If you are happy with my response, I would be grateful if you could rate and close the question.

seanferguson13 :

All the best

seanferguson13, Solicitor
Category: Law
Satisfied Customers: 31
Experience: 3 year qualified solicitor with expertise in UK taxation.
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