Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Have you raised a formal complaint about this?
the furthest it has gone so far is a formal conversation with my area manager
this was in response to two email requests stating that i was unhappy with the changes and the lack of answers to questions which yet again during the formal conversation were not answered
ok thanks let me get my response ready please
There is the potential for constructive dismissal, which occurs when the following two elements are present:
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.
thankyou, so would the offer of leaving under a settlement need to come before a resignation or can it be part of it? should it always be 'off the record' and what if my employer is only willing to discuss my options formally and on the record?
it can come either before the resignation and result in you leaving your employment under it, or it could come after you make a claim and as part of a settlement that results in you dropping your claim. It does not need to be off the record but it is the usual way of doing this because it means neither of you can bring it up in legal proceedings in the future
you are most welcome