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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49821
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I will keep this short. I work national registered charity.

Customer Question

Hello. I will keep this short.
I work for a national registered charity. Nearly three years ago I was promoted into a national role that was a combined position of two previous full time employed roles but came with the same level of key responsibilities.
I was supported by my line manager, who six months later left and was not replaced.
I then was asked to take on additional responsibilities that he had previously carried in addition to my already full on job.
My line manager became the Chief Operating Officer who had senior managers to deal with-I was the least senior manager and had limited access to him. Meetings were primarily phone based unless I specifically asked for a face to face. I became swamped with the amount of task and eventually was signed off with clinical depression for a period of 5 months.
I requested a return to work and completed an occupational health assessment, which supported my return with stringent conditions. I am still under my GP for treatment, and the organisation were advised to treat my condition within the scope of disability legislation. I work a agreed two days per week.
There has been an organisational review and my role is at risk.
Four new roles have been created at a higher banding which are 80% of what my job was, but at my first meeting with my new line manager it was made clear that these roles are full time due to the requirement of the regional operational managers within the business development structure of the charity.
There are no other suitable roles for me and I am invited to apply or consider redundancy.
In simple terms are there any legal avenues for me to make any kind of claim of constructive dismissal if I am forced to leave due to the conditions of the offer in the the new role(s).
Thank you.
Pete H
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.

How long have you worked there?

Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. What do you believe is a serious breach of contract on the employer's part in terms of the conditions of the new roles?

Customer: replied 1 year ago.
I have worked there for five years. I do not want to enter any protracted conversations if I simply have to accept the terms of the offer. The OH referral suggests that my condition should be considered as a disability. I can take the offer and start my own business. I just need to have an answer settled in my mind.Thanks
Expert:  Ben Jones replied 1 year ago.

Thank you. If you were to claim constructive dismissal then you would need to show that the employer had committed a serious breach of contract, something serious enough to justify your immediate resignation and departure from the employment.

The simple act that you are disabled and are protected under disability discrimination legislation does not automatically mean that the employer has to keep a position open for you that is part time. They do however have a duty to make reasonable adjustments so if there is any way that they can keep you in the same role you are now, regardless of the reorganisaiton, then there would be an expectation on them to do so.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • 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 for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

If it is reasonable to expect them to keep you in the same role or a similar role with similar arrangements the they should do this to satisfy the duty of making reasonable adjustments. Only if it is more or less impossible for them to do so and they have a good enough reason not to do so, can they get away with not doing it.

I would suggest that you do not just resign and claim constructive dismissal but that you approach them and raise your concerns around the issues with adjustments and how you believe that they have not fulfilled their obligations. 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.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you