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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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My husband has worked company years having worked

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My husband has worked for a company for 22 years having worked hi way from the bottom up to a managerial level. He was offered a promotion last year which he took on temporary from October to Dec as well as still doing his own position. The new position was to start full time as of January this year salary and conditions had been verbally discussed and agreed and was to sign contract at begin of this year. January came and he started the new position and he is good at it but the company still have not provided a contract or the salary that was agreed. He has now been told that the position is now still temporary bit his old position has now gone so he is stuck with a higher level of management position temporary with still his original salary with no means to earn more commission or bonus now. We are now far worse off financially than ever before We are hoping that you can advise us what to do.
Gillian Welsh
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Has he been told why the position is no longer available?
Customer: replied 2 years ago.
The position is still available and they want him to take on the responsibility on a temporary roll but they have said that they cannot pay hi what was agreed in October so they assume that he will carry on doing it temporarily on the basic salary he was on
Customer: replied 2 years ago.
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Hello, the fact that there was no contract signed for this position does not mean that he does not have any rights. He could argue that a legally binding contract had been created anyway, even if there were just verbal discussions over the position. Under common law a contract is formed when the is an offer, an acceptance and consideration. So if the employer had offered him the position and he accepted it, even if none of this was done in writing, a contract could still have been formed. Therefore, if the employer now reneges on this offer and does not allow him to proceed in the job they had promised him, they could be acting in breach of contract. That could allow him to raise a grievance first but if that is unsuccessful then he can consider the next step which is a claim for constructive dismissal. This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and the steps he needs to follow, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 2 years ago.
Thank you for getting back to me, what are the stages of constructive dismissal and is that when you decide to leave employment or when you are paid off.
Thank you, ***** ***** is correct although he will not necessarily get paid off and may have to make a claim to pursue compensation. So 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.