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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47337
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a company director, who runs a successful design company My

Resolved Question:

I am a company director, who runs a successful design company
My employer has proposed a new role for me keeping my old responsibilities
But adding a manufacturing department, doubling my responsibilities.
Slightly higher salary but potentially lower profit share.
I really don't want to take it, but they may force me
Can they ? Is it 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. How long have you worked there for?

Customer:

26 years around 12 as a director

Ben Jones :

Are you a director for the company at Companies House?

Customer:

Yes

Ben Jones :

OK I am just due in a meeting at 12, shouldn't be too long so will respond as soon as I am back, thanks

Customer:

No probs

Ben Jones :

thanks for this. Are you also an employee rather than just having an executive directorship role?

Customer:

I am an employee

Ben Jones :

ok just before I proceed you should know that there are two separate aspects to your query - an employment one and a corporate one. The employment one will be concerned with your employment rights, the corporate one with your directorship rights. As these are two separate areas of law I cannot advise on the corporate side so if for example there is something from that part which would allow them to do what they are proposing to do I would not know about it so my response would be based purely on the assumption that the corporate part would not protect them. Is that ok?

Customer:

Yes

Ben Jones :

ok let me just get my response ready please

Ben Jones :

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.

Ben Jones :

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

Is there a limit to what the settlement could be ?

Customer:

One last question, burden of proof, what would proof look like ?

Ben Jones :

compensation can be all of the following:
1. Basic award - same as a redundancy payment, which you can calculate here (https://www.gov.uk/calculate-your-redundancy-pay)
2. Compensatory award - loss of earnings, max around £77,000
3. Breach of contract - to reflect your contractual notice period that you could not serve

Ben Jones :

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Ben Jones :

Could you please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? It is important for us to know either way so we can track customer satisfaction or identify whether I need to help you further? Thanks

Customer:

Hi i keep trying to rate and close this, but it say you are still working on it.

Ben Jones :

Hi, I have enabled the ratings option, there may be a delay in it working...you can always just type your selection here and we can process it manually, thanks

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