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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50164
Experience:  Qualified Employment Solicitor
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I would like to know if I have a case dismissal,discrimination

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I would like to know if I have a case dismissal,discrimination or breach of contract. Can you help with this please?
Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. Can you please explain the situation in a bit more detail



Well it's a long story but I felt forced to resign from my employer who I have worked six years. I have had a few issues with my employer years and have always felt that they wanted me out. I was signed off from work weeks and was called in first welfare meeting where I was told that if I am not back in work on the expiry of my fit note I will be issued with a first written warning, a further fit note then a final written warning and then dismissal. I was signed of with low moods/depression work related. I was signed of two years ago with stress, anxiety and depression, again work related. My employer made no attempt to understand the full extent of my condition or offer reasonable adjustments. Due to my depression I felt unable to cope the threat of capability or dismissal so I resigned at first verbally which was accepted by my manager. I then emailed my notice in writing then I had a formal email back advising me to reconsider if the reason resignation was due to the threat of the capability process and dismissal. A meeting was offered to me to discuss further but was never followed through. I had a telephone conversation with my manager Monday just gone and advised I need to think about my decision. Then yesterday with no further warning I was advised that my resignation as been processed and my leave date will be the 2nd of February. I would like to know if I have a case dismissal or discrimination as I feel the company have not followed the correct procedures and have added to my condition. I was reluctant to go down the grievance route as I have done this before with this employer and it was a very long and lengthy process which continued 12 months and was never resolved properly. My previous issues with the company have been bullying from my line manger and the constant threat of being performance managed out, unfair work allocations and targets, accused of being a trouble maker a grievance and being a union member, management having a bad perception of me and me having a bad profile, not adhering to occupational health recommendations, not acting in a timely manner on concerns of a cheat on the team leading to lack or work to achieve target then informal performance managing myself and other team members. I feel like the list is endless hence the reason I found it impossible to return. Do you think I have a strong case?

Ben Jones :

, thanks detailed response. Just to be clear I would not be possible to tell you how strong a case you have just from the limited information I have about this. You would need a solicitor to conduct a full case analysis before you get anywhere near to someone giving you prospects of success. As we are just a Q&A site we cannot do that but I can discuss the law in relation to this with you and give you an idea of what tribunals may look they consider such claims.

In terms of constructive dismissal, this may indeed amount to that, 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. So you could raise that in your defence if you are challenged on why you did not purse the grievance process.

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 resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim 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 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 it and it would not be used against you.

As far as disability discrimination is concerned, you would first need to show you have a disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours , assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.

If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. you can make the claim at the same time as the one dismissal.

Also note that before you are allowed to make a claim you are required to contact ACAS and use them as a mediator to try and negotiate a settlement with the employer. Only if the discussions are fruitless would you be issued with permission to claim, so there is still another opportunity to try and walk away with a financial settlement without having to make a formal claim.

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

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