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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46184
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a university lecturer. There is a tutor who repeatedly

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I am a university lecturer. There is a tutor who repeatedly opposes me, who is openly making a joke out of his promotion of illegal book downloads, has students who cannot see their tutor without a union rep in attendance because they feel so uncomfortable with him, who knowingly flouts the learning and teaching guidelines, says inappropriate things to students and has even uncovered himself to another member of staff. The head of the academic department that I work for has asked me not to return to my office anymore because of his fear for my physical safety. I have had to take time off work with anxiety and depression. This other tutor has asked for mediation with me but I can't face being in his presence. Please help. What can I do?
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.
Hello how long have you worked there for?
Customer: replied 11 months ago.
Ten years
Customer: replied 11 months ago.
More than ten years.
Customer: replied 11 months ago.
I can't wait any longer. I'll come back a little bit later.
Expert:  Ben Jones replied 11 months ago.
Hello, sorry I was in meetings by the time you had replied. A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence. Finally, every employment relationship includes an implied term of trust and confidence, which needs to be preserved by both parties. So if the employer does not resolve situations where your welfare or wellbeing are adversely affected, they could be acting in breach of that trust. Whilst this person has asked for mediation, you cannot be forced to participate in it so you can refuse to do so if needed. You should consider raising a formal grievance against this person and asking the employer to deal with them as appropriate, such as disciplining them. If the employer does not resolve this and the issues continue then you may consider opting for constructive dismissal, which you can pursue in the employment tribunal. This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how you can apply it here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46184
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Expert:  Ben Jones replied 11 months ago.
Thank you. As mentioned, 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.

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