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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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after working company years, (restauarant, im

Customer Question

after working for a company for four years, (restauarant, im the head chef) ive had no disciplinarys or warnings) i heard through two separate people that i would be asked for my resignation on monday morning and my sous chef (second to me) has been asked to write a letter to the owner highlighting my problems, im prepared to admit that my performance has not been the greatest, but for my boss to be discussing my future, so people can over hear to me makes my position untenable and is it not constructive dismissal?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Why do you believe the employer wants you out?
JACUSTOMER-36h96pz5- : I have been told that it's due to my recent performance, I also started to look for a new job.
JACUSTOMER-36h96pz5- : It was my day off and I was told by two colleagues that my resignation would be asked for on Monday and my sous chef has been offered my job
Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues last night. All seems to be resolved now so I can continue with my advice.

This could indeed 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). In this case you are being asked to leave when the employer has not really followed any other performance procedure. Whilst they can eventually dismiss you for poor performance it is not something that should happen straight away and they need to issue you with warnings and give you the chance to improve before they consider dismissal.

Whilst resignation and a claim for constructive dismissal is an option, you would be better off refusing to resign and letting the employer deal with this in whatever way they see fit. If they decide to dismiss straight away it is likely to be an unfair dismissal and you can claim that instead of constructive dismissal – it is generally considered an easier claim as it is for the employer to prove the dismissal was fair rather than for you to prove you had good reasons to resign.

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.

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

Ben Jones :

Hello, 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? I just need to know whether to close the question or not? Thanks