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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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I have been employed by an organisation and 1/2 years

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I have been employed by an organisation for 4 and 1/2 years from September 2010. For the first 4 years I served in Customer Services dept and moved into a secondment role within another dept in September 2014, after a period of absence caused by work related stress. In January 2015 I submitted a grievance to HR regarding issues I experienced with my line manager whilst serving in the secondment role. After investigation 2 of my 4 complaints were partially upheld and recommendations were made by the investigating manager. These recommendations included an immediate termination of my secondment to move me back to the Customer Services role that caused me illness. I have appealed the decision but the recommendations in respect of me were made with immediate effect. The appeal has yet to heard and I have (since February 5th 2015) been on sick leave. Yesterday I discovered I no longer have access to company emails and called the company to find out why. I was informed that I 'have been registered as a leaver' as at 02/02/2015. I have not resigned and have not been advised by the company that my employment has been terminated. I handed in a sick note to HR for work related stress on 12/02/2015 after seeking assistance from my GP. The sick note runs to 12/03/015. I am not aware of any disciplinary action against me and have sought clarity as to my employment status which has yet to be provided. Can my employer terminate my employment in this way and what options do I have?
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you sought clarification on what they mean being a leaver?

Yes, I've just spoken with a colleague in HR and apparently this was an admin mistake. As detailed in my first question they terminated my secondment to return me to a Customer Services role. As a result an internal procedure use to control movement of staff was incorrectly followed and I was made a 'leaver' (as in I have left the business) rather than a 'mover'.


The HR colleague has also advised I am still employed by them and that I will be paid in line with sickness absence policy.


It appears this was simply an admin error but I'm concerned by their treatment of me. I have raised grievances for which I have been punished and the company are trying to force me into a role that causes me anxiety and stress. I feel they are leaving me with little option than to leave. I have an appeal hearing next week in which I seek a review of grievance outcomes but the decisions made so far indicate my appeal is unwelcome and unlikely to be successful. I have made evidence-based complaints and these were not investigated properly. The grievance was used as a platform to attack me and I've been subjected to counter claims rather than gaining an impartial, objective and balanced investigation. I have been punished for raising genuine complaints and feel like there is little option but to leave. I'd like to know if I have a case for constructive dismissal?

Ben Jones :

Hi, sorry I was in a meeting by the time you had replied. So as I understand it, there is no longer an issue with the status of your employment and whether you are still employed by them so the only issue remaining is the way you have been treated and the fact you are being moved back to a role which caused you workplace stress.

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.

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


It is an excellent answer thank you. I have some advantages in terms of burden of proof regarding a return to a role that caused me work related stress. I also possess extensive evidence of my performance in hard metrics and evidence-based contributions to the company over the course of my employment. I'm hoping that sense will prevail and I'm allowed the opportunity to pursue a mutually beneficial career with the company

Ben Jones :

I would hope so too but be prepared that not all employers act in the way they would be expected to or should. I can't comment on the approach yours will take but I would say conclude the grievance process first before considering your options. Some employers will wait until something actually happens, for example a resignation or a claim being made before they actually 'wake up' and start taking the issues seriously


Ultimately I'd prefer an amicable solution to the grievances I raised. Either a return to secondment with opportunity to apply for a full time role should one materialise or redeployment to a role fitting my personal development plan. I have the platform of an appeal hearing next week to position my preferences and hope the initial investigation recommendations are overturned. In the event that this does not happen, I need to decide at this stage whether to position a settlement agreement if the insistence is that I return to a role that caused me work related stress. If this fails then I resign asap stating why and pursue a claim for constructive dismissal.

Ben Jones :

I very much agree with the proposed plan of action


Cheers Ben,


Excellent advice and I have a clear plan of action.


Thank you

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