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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have reported a colleague he has been found

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I have reported a colleague for harassment he has been found guilty after an investigation . But my employer says he is able to carry on working in my department he does not even have a contract as he is a locum . I feel so distressed by this that I cannot continue to work there but I cant afford to leave . They say I can appeal but this could take months and they seem unlikely to overturn there decision . Do you know what would be best for me to do ? Thanks
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

since 2009

Expert:  Ben Jones replied 2 years ago.
It is difficult to say what the best step forward in this situation would be as it would be a personal decision for you. It is you that is having to deal with this person if you stay there and it is also you who would be without a job if you decided to leave. So these are all personal decisions you need to make based on your own personal circumstances. I can discuss the legal side and what your options are but the final decision rests with you. Initially, as you have been advised, you are able to appeal the outcome and the employer will have a duty to deal with this. If you are unable to continue working there whilst this is ongoing you may wish to consider going off sick, for example with stress – if you have any entitlement to sick pay you should continue being paid for all or at least part of that period. Alternatively you would have to look at resigning. 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. So these are your only options and as mentioned you need to decide which one suits you best. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.

Going for constructive dismissal would seem very risky . But if I were to go down this route would it be best to appeal first and wait for the outcome of the appeal and then consider this option if that appeal fails . Or would I be leaving it too late to claim this in other words if I wait for the appeal decision would I be seen to have accepted the breach by my employer ?

Expert:  Ben Jones replied 2 years ago.
Waiting would not necessarily be accepting it because you are still mourning an option which could change things. But if the appeal takes a hole and in the meantime these issues continue then therapies be an argument that you had accepted the breach in the meantime. It is not an exact science unfortunately, there are no set timelines within which something may become accepted it all depends on the individual circumstances. I would say start the appeal and see how it gets on, if things remain really bad in the meantime consider not waiting for the appeal conclusion if it appears to be some time away

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