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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44365
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My friend is 58, due to retire at 66. She has always worked

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My friend Pat is 58, due to retire at 66. She has always worked as a secretary in local government and has been in her current Child Protection role for about 12 years. About 2 yrs ago the dept reduced its staffing so Pat now has to do the work of 1.5 staff. She has been working 2 hrs extra each evening and going in for 3-5 hrs most weekends without pay. Pat is supposed to be able to reclaim this time with ‘time off in lieu’ but she is so behind with work there is never a chance. This is made worse because a p/t colleague does get time off in lieu, leaving Pat to do some of her colleagues work as well. Despite working an extra 10-15 hrs a week unpaid she is constantly behind with her deadlines. She is routinely required to attend meetings to explain why she is behind with work. She frequently asks for help but is told she needs to plan her work more effectively.
Pats line manager is unhelpful and unsupportive (and incompetent?), often making aggressive and unprofessional comments. She is inconsistent mostly being unpleasant and difficult and then out of the blue being friendly. The senior manager who is nicer to deal with is weak and has not dealt effectively with the line manager, who doesn’t appear to do any work! Due to constant tiredness and stress Pat is not sleeping well most nights and has regular migraines. Her social life is severely affected, regularly having to cancel activities due to working late, fatigue or migraine. Over the past year three younger staff have left due to the line manager’s behaviour. Pat is finding the situation increasingly difficult to tolerate and wants to leave but will find it difficult to find another job at her age.
What are Pat’s legal/employment rights? Can they sack her for supposed incompetence?
Can she ask for compensation or a pay-off and a good reference to leave/have early retirement?
Submitted: 1 month ago.
Category: Law
Customer: replied 1 month ago.
Pat is not aware of her line manager’s job description and does not see her doing any work. The line manager always leaves on time and does not help her department meet its targets.
Pat does plan her work each week but often this plan is thwarted when she is given extra tasks to do such as train new staff, answer more phone calls than usual or a conference overruns. The software was changed last year which is more difficult to use and slower. Her line manager was not able or willing to help with this. Pat is not allowed to take a coffee or lunch break with another colleague so has no outlet for friendship or distraction from work. She is considered last when planning annual leave in the summer and at Christmas. She always has to work on Christmas Eve, sometimes on her own, even though others have been allowed the day off.
Expert:  Ben Jones replied 1 month ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. 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.

In terms of sacking her, whilst there is nothing stopping the employer from doing that, it is unlikely to be justifiable n legal grounds so if they do she can consider taking the matter further for unfair dismissal.

This is your basic legal position. I have more detailed advice for you in terms of the rights she has if she is dismissed and hoe to take it further, 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

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44365
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 month ago.

Thank you. If this results in dismissal, an appeal can be submitted to the employer straight after the dismissal outcome is communicated. If the appeal is rejected a claim for unfair dismissal and/or age discrimination can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.

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.

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