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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50196
Experience:  Qualified Employment Solicitor
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Hello Ben I was put through a disciplinary hearing in early

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Hello Ben
I was put through a disciplinary hearing in early 2014, which I considered to be retaliation for a grievance I had submitted regarding discrimination. There was a lot of what I considered to be vexatious allegations put forward - for example a manager had said she had no knowledge of me setting up an account with a client even though there were many emails between us discussing this, which I submitted as evidence. I was given a final written warning and I eventually resigned in Oct 2014 as my employer would not investigate these vexatious allegations, even though most of them were dismissed against me.
I've recently been passed an email anonymously which was sent by one of the people who made false allegations to another colleague, who speaks in very derogatory terms about me and another colleague who supported me - the word "swastika" is used among others. This was sent two months before the the disciplinary matters began. I am employed still at the same company albeit in a part-time role at another site and I feel like I should tell my employer but I am worried about retaliation? I am also considering any legal action I could take together with what happened with the disciplinary issues? Thanks.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?


8 years

Ben Jones :

Hi, sorry I was offline by the time you had replied and have only just returned. It is difficult to say whether you should raise the issues with the employer know because I cannot predict what the employer’s response would be and if there is a genuine risk of further retaliation. So you would be a better judge of that and all I can really discuss is the legal position should they decide to retaliate and perhaps end up making your position in the company untenable.

If they do go ahead and retaliate, 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.

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.

In terms of other legal action, for example based on the disciplinary, if it was genuinely as a result of your discrimination claim, then it could amount to victimisation, which is unlawful. However, any claim for that must be submitted within 3 months of the alleged victimisation so you would have to act fairly quickly if it happened in October 2014.

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


Hi Ben, thanks for your reply


Just to clarify a few points...


As I'm still employed there in another role, if I did end up resigning from that would I be able to take matters from 3 months from when I resigned from that or from the other role I had that I left in October?


Also, are there any legal conseqeunces for passing an email to my employer that I wasn't party to but could affect the way a colleague has treated me adversely?

Ben Jones :

Hi, assuming your employment was continuous (no more than a week's break between the jobs) then the claim would need to be made fro the time you leave the employer, so the latest resignation, not the old one. It would not have been a resignation from the old job, rather an internal move. Assuming you did not access the email through any illegal means, or against company policy, then there is no issue with passing it on to the employer if needed

Ben Jones :

Hope this clarifies things for you?


Yes, the two jobs ran concurrently and the one I have now I kept on purely for financial reasons but I would still like to leave. thanks for your advice.

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