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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50207
Experience:  Qualified Employment Solicitor
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I have worked for my employer since March 2009 first of all

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I have worked for my employer since March 2009 first of all contract then permanent from Dec 2011. I used to work no more than 50% at home in France which they stopped in November 2010 after taking 11 months to make a decision and taking me to the wire each time my contract was due for renewal. The reason given was legal reasons. When they would not expand on that I took a grievance to get a reasonable explanation which I won but they then hid behind legal privelege and would not expand on the reason. IN 2011 everyone had to reapply for their jobs which I did successfully. My job desciption was changed and not fit for purpose (redesigned by someone useless). I asked for it to be reviewed for its accuracy and grading. Was told would be done within six months but it took from Dec 2011 to Dec 2013 and came back at same grade. I explained again my reasons for not accepting the grading and it was referred back to HR on 16 Feb this year and has still not be looked at.

I was referred to Occupation Health in February when I made it known I was being treated for Rheumatoid Arthiris and asked to work less hours to address work life balance which I had asked to do last year (but wanted JD sorted out first). Employer concerned about time off work. None for arthiritis but last year fell and broke nose so was off for a month.

I am now signed off with work related stress. I cant even face going into see Occupation Health or go anywhere near office. MY line manager has even failed to call me in the five weeks I have been off. She has just sent me forms she has completed for O. Health without any consultation with me with loads of innaccuracies. In February she completed a stress related form without telling me and again this was innacurate.

I am now signed off for another month and am feeling in a situation of where I cant go near the place. Do I have to see Occupation Health at the moment. What advice can you give me on my situation.

I just feel I cant return to work. My performance in my job is good and unblemished and documented.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are you hoping to achieve in this situation?


AS we speak my line manager has completed another OH referral without my consultation and there are items in there that are innacurate and first i have ever heard of. My employers do not appear to be assisting me in getting me back to work. the opposite in fact and I am on the brink of handing in my notice. My JD grading is still unresolved with no target date for them to complete.

Ben Jones :

Hi, sorry I was offline by the time you had replied. Your situation 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.


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.


Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you


Thank you for response. This is exactly as I thought and understood my position. I am not inclined to raise another grievance. I won the last one and they did not adhere to it and they took 9 months to deal with it. It is a compounded situation with me over a number of years of their behaviour which has put me in this situation.


One other question is that if I am not happy with the Occupation Health paperwork and Stress related forms completed by my line manager (as mentioned previously and the first stress form completed without my knowledge or input). The second set of paperwork again my line manager failed to follow the advice to keep in regular touch with your staff if off ill (as per the guidelines) and did not discuss the documents with me again. I dont agree with the content. Also it has mention of items in there which is the first I am aware of. For example, reference on stress form to personal target being set for me with no real effect. I queried what was meant by this and got a load of waffle.


Am I within my rights to say I reject the forms and do not wish to see Occupational Health with these being used as the basis for referral?

Ben Jones :

you may say so but you should also provide your reasons for doing so. If you just refuse to do as the employer asks then you could be seen as acting unreasonably, however if you provide grounds for your refusal it would explain to the employer what you are basing your actions on and should provide a reasonable justification


Thanks for that.

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