Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long exactly have you worked there for?
Apart from the initial allegation, has anything else happened since?
This could indeed 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. I suggest you try and do that before you resign – once you have left the employer may be reluctant in engaging in negotiations with you. Saying that before you are able to make a claim you must engage ACAS to negotiate between you and the employer anyway so that would prompt the employer to further negotiate with you.
It is also possible to get signed off sick from one job whilst working in a second one – there are certain principles that apply to that and I can cover these with you as well.
This is your basic legal position. I have more detailed advice for you in terms of the principles on working in a second job whilst being signed off from another, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. It is not illegal for an employee to be off sick from one job and receive sick pay, whilst continuing to work for another employer. Many employers incorrectly refer to this as the employee 'defrauding' the company and even take disciplinary action, up to and including dismissal.
However, the legal position is that as long as the employee is genuinely certified unfit to work and this affects their ability to carry out the specific job from which they are signed off, they are able to be off sick from it. In the meantime if they are capable of performing another job, which is not affected by the reasons for being signed off sick, they can do so. For example, someone is signed off sick due to workplace stress as a result of heavy workload or bullying by colleagues. The stress prevents them from working in that specific job as the stressors are directly connected to it. It does not prevent them from continuing to work in another, less stressful job, where no stressors are present.
It is also important to consider the conditions of the employment contract or relevant policies from the job the employee is signed off from. For example, the employee's contract could state that a condition of receiving company sick pay is that they do not work elsewhere, or they could even be a blanket prohibition on having a second job. In such circumstances it would be a potential breach of contract to have the second job, even if generally it would not be illegal to do so.
In the absence of such a restriction and assuming the reasons for being signed off sick are genuine and do not affect you working in the second job, this would not be illegal.
Going back to the procedure for claiming against the employer, as mentioned you have 3 months from date of termination to make a claim. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.
If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.
The conciliation procedure and the form to fill in can be found here:
In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
ye that is correct and outlining your proposed settlement terms
You are most welcome