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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50514
Experience:  Qualified Employment Solicitor
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I work for the investments arm of a multi national insurance

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I work for the investments arm of a multi national insurance company (headquartered in the US). My direct boss is the Chief Investment Officer, an FCA registered individual of an FCA regulated company.After being signed off for the last 8 weeks due to work related stress and I specifically stated to HR that my colleagues and direct reports should only be told that I am unwell.During my return to work meeting yesterday with HR and my boss, I asked the question "what has been told to my colleagues regarding my absence?" Initially my boss stated that he had said to them that he couldn't tell them anything. After moving on to a another subject he then said the following "for clarity, what I did say when asked where you were and what was wrong with you that you were not off for physical reasons, you hadn't been in an accident or had a broken leg or anything like that, it's nothing physical".After consulting with both ACAS and the ICO I believe there has been a serious breach of the Data Protection Act, the use of the phrase “nothing physical” directly implies that the reason is a mental illness and thereby disclosing sensitive, medical information about myself. I hold a position of influence within the company, have direct reports and I'm mortified that colleagues know that I was absent due to mental health issues. After being advised by the ICO that this is a breach of the act I am writing to my company raising the breach.In the meeting I agreed a staggered return to work, now after reflection of what has been said about me and that everyone now knows why I have been absent and with my complaint regarding the breach I am even more anxious and stressed about returning. I have obtained a note from my Doctor signing me off for the time it takes for the company to investigate.Due to this breach I feel my position in the company, not only in the UK but globally has been irrevocably compromised and my position has become untenable. Where do I stand legally with this? What should I expect from my company to rectify this? What is my next step?Many thanks for your assistance.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How long have you worked for this employer for?

Customer: replied 4 months ago.
5years 4 months

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. 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 resigns in response to it.

Whilst the alleged breach could be a breach of a specific contractual term, it is also common for a breach to occur when the implied term of trust and confidence has been broken. The conduct relied on could be a serious 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).

Before constructive dismissal is contemplated, it is recommended that a formal grievance is raised in order to officially bring the concerns to the employer's attention and give them an opportunity to try and resolve them.

If resignation appears to be the only option going forward, it must be done in response to the alleged breaches (i.e. without unreasonable delay after they have occurred). Whilst not legally required, a resignation would normally be with immediate effect and without serving any notice period. It is also 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 with the employer. There is a time limit of 3 months from the date of termination of employment to submit a claim in the employment tribunal.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps you need to take to pursue this further if you have to claim. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 4 months ago.
Thank you for your response.I'm more of the mind to go with the alternative solution. My company has a history of avoiding tribunals at all costs and pays well to get rid of people quietly.Personally I'm still in a state of shock that a) the CIO said what he said to people and b) that he actually told me in a meeting with HR present.For clarity - am I correct in thinking that what he has done besides a breach of the DPR and Article 8 of the HRA could also be a breach of FCA regulations and that he has effectively destroyed my reputation within my company and probably beyond?

Hi there, unfortunately, I am not familiar with the FCA Regulations as this is industry-specific, rather than general or even employment law so I cannot comment on that. How serious the effect of this is would very much depend on the actual repercussions. Obviously this wil not automatically result in your reputation being destroyed but it will depend on a case by case basis and what has actually happened and the effects it has actually had

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