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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49868
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been employed by a British company for the last 20 years

Customer Question

I have been employed by a British company for the last 20 years - 7 years as a Limited Company employee and 13 years as a staff person with pensionable salary. Since January 2008 my company have employed me through a Global resources office in Singapore whilst on assignments overseas. On the 18th December 2013 I completed an assignment in Australia which I have been on since August 2010. I elected to return to the UK for family personal reasons. In early December 2013 I received a Termination notice from AMEC in the Singapore office which said that "effective 19 December I fall under UK terms and conditions and my payroll will be run from the UK. Since I announced I was returning to the UK about 5 months ago I have repeatedly asked about my terms and conditions I'll be retuning to. However, as of today I still don't know what these will be and who I will report to. Therefore, with this uncertainly I felt compelled to secure myself a position outside of AMEC which I can take up in the new year if I decide to do that. If I was to leave my current employer and take up this new position - Do I have a case for constructive dismissal? Or can you suggest the best way to proceed with leaving my current company and receiving some sort of compensation for the time I have done with them? I have already asked this question to an Australian lawyer from Just Answer.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. If you were to leave your current position and take up the new one will you be more or less on the same pay and conditions?
JACUSTOMER-nm669pov- : Hi Ben, thanks for your reply! If I take up the new position outside of my current company AMEC - I will be employed under a different method to what I currently am as I will work as a Ltd. company and won't have any of the benefit currently available tome through AMEC. Such as pension, healthcare, etc. the overall remuneration would be similar.
Ben Jones :

Hello again, constructive dismissal 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).

Whilst the sole act of not giving you a contract itself is unlikely to be serious enough to justify constructive dismissal, if as a result you are unable to perform your job properly, you are left ignored, isolated, without any work to do, etc then all these elements could add up to make this into a constructive dismissal situation.

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.

However, do note that when claiming constructive dismissal you would only b entitled to claim loss of earnings resulting from the loss of hat job. So if the remuneration package is about the same and all you are missing out on is some benefits on top of that, you need to seriously consider whether it is worth taking this to tribunal paying all the fees and taking the time to sue the employer for what may be not a very big payout.

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.

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

JACUSTOMER-nm669pov- : Hi there, thank you for your very comprehensive reply. Bullet point 2 seems to be appropriate to this situation. However, I tend to agree that there is quite a bit of mental anxiety with going all the way through with this process for very little return if I take up the similar compensated post with another employer. I like the idea of corespondening with my current employer "off the record" to ask if they will consider a settlement. I haven't actually resigned yet - I have only advised them that the way I've been treated regarding the lack of terms and conditions and not being advised what job I'll be doing that I have been forced to look for alternative employment.
JACUSTOMER-nm669pov- : Would you suggest that I formally resign by letter stating my reasons and also include in the same note asking them if they would consider a settlement rather than go through a claim through the courts?
Ben Jones :

Hi, before resigning I suggest you consider the grievance route, you can then discuss all issues with the employer and try to find a way forward. If that appears impossible then you may indeed go down the resignation route, although do not approach the issue of settlement in your resignation letter - keep the formal parts separate from the informal ones (by informal I mean things you wish to keep o the record and not included in any future evidence for example, such as the proposals for settlement)