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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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If someone has been pressured into converting from a higher

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If someone has been pressured into converting from a higher comp secondment to a lower compensation permanent contract in good faith (against threat of being made redundant), and then finds that the "performance review" is negative in a manner that can be proven to be unjustified and with a seeming agenda, is there an argument that the conversion from secondment to permanent contract can be declared nul and void? Timescales of all of this less than 12m, background is mid-exec job say £60k pa plus shares, and the individual essentially has "internal clients" who all rate high to very high.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. How long is that person's continuous employment?

Customer:

- so originally hired in australia 6 years ago, then seconded to london 2 years ago, then in mar/apr14 got told they wanted her to "localise", and with contract signed i think perhaps sep14. There was a specific clause inserted to ensure she is treated as having 6 years continuous employment.

Customer:

I should add the localisation contract was on 10% lower direct compensation and without the housing support etc which probably added a further 30%. So the forced localisation seemed money linked, and now the performance review similarly seems specifically intended to reduce compensation - as mentioned despite universally positive reviews from her actual clients.

Ben Jones :

sorry I was offline by the time you had replied. Whilst the person could consider pursuing this further, forcing the original agreement to be null and void would not work without the employer’s consent. It means that even if she raised this argument and asks to be reinstated to the old position, if the employer does not agree to it she would not be able to force that through and would need to seek other ways of taking this further.

As far as the legal position is concerned in that respect, 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 resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim 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 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 it and it would not be used against you.

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

Customer:

so i think you are saying that a court would not consider that the employee accepted to localise in good faith, only to then be treated unfairly. But is there a difference in terms of the legal protection between an employee simply arguing they are being treated unfairly/being bullied by their boss (which is always subjective), versus arguing that the employer is acting in bad faith by having agreed one form of comp package but then using the performance review process to try to artificially lower its obligations? (ie is an allegation of "corporate bad faith" worse than an allegation of "bullying"). The background here is that there is 2 years of evidence of the team leader complaining about the employee's compensation, along with 3rd party support that the performance mark is a fabrication. Thanks R

Ben Jones :

There would be no link between the decision to localise and the subsequent behaviour, not legally anyway. So a court would generally consider what the alleged breach of contract is (in this the breach of trust and confidence) and ‘paint a picture’ based on previous occurrences, leading up to the reasons that led this person to resign and claim constructive dismissal. So you could find that the bullying, together with the subsequent decision not to award fair performance reviews, all amount to a continuous act which eventually led the employee to take the matter into her own hands and pursue such a claim.

Does this answer query?

Customer:

Thanks

Customer:

Ah - now i have said Thanks i cannot rate/close out....

Ben Jones :

Sorry it should work, could you please try again if possible, many thanks

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46808
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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