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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49852
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am currently off sick due to a difficult working environment

Customer Question

I am currently off sick due to a difficult working environment which is making me depressed. My boss has been in touch and wants me back but to ignore the reason behind my depression. He has also said that the other person who has made me unhappy, another employee has made a compliant about me and has now resigned. How do I deal with this compliant, should I make a compliant about her so at least I am covered as she appears to be covering herself? I feel I cannot go back to that office as I am made to feel the guilty one even though I am the most helpful employee they have. Please advise. Jo
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.

Ben Jones :

Have you made your manager aware of the issues with this person prior to her making a complaint please?

JACUSTOMER-8lxmuc2f- : Yes in full and they refuse to do anything just have to rise above it
Ben Jones :

OK, thank you, please leave this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

JACUSTOMER-8lxmuc2f- : Great thanks any advice appreciated
Ben Jones :

Just to check how long have you worked there for?

Ben Jones :

Once you have confirmed the above I will be able to finalise my advice, thanks

JACUSTOMER-8lxmuc2f- :

I have worked for them for 3 years - known them 10 as use to work with them at a previous company before they set up own business.

Ben Jones :

If a colleague has made a complaint about you, the n you may not actually be given details of the complaint unless the employer decides to take formal action against you, for example to take you through a disciplinary hearing. If that happens then you will have the right to be given details of the allegations against you so that you can defend them. If no action is taken, then even though it is not nice to know someone has complained about you, you would not have the legal right to demand that the employer discloses details of the complaint.

In terms of making a complaint yourself, then whilst that is possible, you have to consider why you would be doing that. It would not necessarily protect your position as such, because you are really only going to expect that either action is taken against the employee (which cannot happen as they have now resigned), or if there are any procedures, policies, etc that the employer can change to make things better.

When it comes to taking the matter further then the only realistic way of treating this is by arguing it potentially amounts 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.

JACUSTOMER-8lxmuc2f- :

I am not sure where or why she has done this against me, I am being accused of being unhelpful and obstructive over a matter that I dealt with for her and the bosses were included in. She resigned last year because of issues with other members of staff so my concern is that she is victimising me now.

Ben Jones :

I understand that but it would still not change the above advice - unless the employer is now going to take formal action against you as a result of this complaint, then legally you may not ask them to disclose details of the allegations. There is nothing stopping you from asking them to do so, but if they refuse then you cannot force them

Ben Jones :

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?

Ben Jones :

I see you have accessed and read my answer to your query. 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?