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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 60512
Experience:  Qualified Employment Solicitor
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Employed already 3 years with my current employer. after the

Customer Question

employed already 3 years with my current employer. after the first year a position of my interest got free in which i was assisting already for months my colleague that had it as extra duties to my atm contract. I asked to get the position but they only gave me all the duties when the colleague left but not the salary nor the contract of the position. i worked over 6 months without change to my contract to the new role and when the time came having seen how passionate i am about the role and i would never leave the company they did not offer me the salary my colleague was taking but only the title in thw contract. that was the first kind of different treatment i had in the company but this has become worse over the last 2 years that i have been promised with written and easy to testify proofs in 3 occasions that i would be given the chance to be interviewed at least for upcoming positions. In all 3 cases they places people pre selected without following the process and without ever calling me to participate in the selection process. Again and again promises of opportunities from directors and managers in written form without real fair and equal treatment. I wonder if i can do something about it? I am exhausted and so deluded of all this.
Submitted: 9 days ago.
Category: Employment Law
Expert:  Ben Jones replied 9 days ago.

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

Expert:  Ben Jones replied 9 days ago.

What are you ideally hoping to achieve in the circumstances, please?

Customer: replied 9 days ago.
whatever benefit can help me get out of this. whether that is economical or other kind. i am not sure how this works and what an employee can gain of such circumstance. i only know i have lost 3 years there with hopes and fake promises. is one of the biggest fashion brands and should not treat employment this way i suppose. i am completely demotivated in working with them but also deluded for the time i lost hoping.
Expert:  Ben Jones replied 9 days ago.

Thank you. The main issue is that an employer can decide who they employ in a role and not offer it up for competitive applications and they can select whoever they want in it. Additionally, if you were given tasks that someone else used to do for higher pay, here is no legal obligation on them to match that pay with you and they can pay you the current rate you were getting. The only times the above would be potentially unlawful is if the reasons for this treatment were related to discrimination, which means due to your age, gender, race, religion, disability. If these reasons were linked to any of these factors then it can amount to discrimination but otherwise it would just be unethical behaviour by them, rather than unlawful.

Assuming no discrimination, your only option is to treat this as potential 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. This is a term which automatically exists in every employment relationship. The conduct relied on could be a serious single act, or a series of less serious, but still relevant, 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 considered, 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 breach(es) (i.e. without unreasonable delay after they have occurred). Whilst not strictly 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 the employer 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.

Does this answer your query?

Expert:  Ben Jones replied 8 days ago.

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Expert:  Ben Jones replied 7 days ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you

Customer: replied 6 days ago.
Hello. I am trying to analyse your answer and match it to my specifics. I admit this gives an overal understanding of the legal processes to follow but i am not sure if you suggest this applies to my case or not. I am 3 years with the company so your 2 year limit applies to me. Also i believe the conditions generated by the unethical behaviour but not unlawful as you mention have actually made me be in the edge of resignation. Also your indication that the employer may indirectly drive you to resignation well the area manager clearly said to me “you know umberto if you don’t like it there are other businesses out there” indirectly telling me i could resign and find another job after 3 years believing in their promises.

Also because of these unethical but not unlawful as you said behaviour, i lost my time in this company and money from doing something more beneficial for
me rather waiting to ascend within it and achieve my goals.

So i am not sure after your answer. On MY specifics as i described in the first message and in this last one, do i have any chances to get any benefit from this company and what is the first step to start with?

To finish with if the answer is yes what would you charge to get this case to the end?

Regards,
Umbert
Expert:  Ben Jones replied 6 days ago.

Hi there, unfortunately, the rules I work under do not allow me to discuss your chances of success in court. When solicitors determine these, we would conduct a formal case analysis and take the full details and evidence that are available into consideration. On this site we deal with very limited information in a Q&A format, so inevitable certain details and evidence will be missed. Therefore, if we discussed prospects of success based on this limited information alone, we could end up giving misguided advice and prompt you into either making a claim or not making one, when in reality we may have advised the opposite had we known the full details. That is why we are only limited to discussing the legal position and your options, without actually commenting on how good or bad a case you have.

 

So following your latest queries, I can certainly advise you on the steps you need to take to progress things, but I cannot tell you if you will be successful or how good of a case you have.

 

Is that ok?