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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61116
Experience:  Qualified Employment Solicitor
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I have been working for a company for 12 years and it's in

Customer Question

Hi, I have been working for a company for 12 years and it's in the UK. The company is US-based. My contract and workplace have a documented process where if I work 40 hours a week instead of the 36 then I can have 1 Friday off. Typically I don't take this but recently I decided to do it. My new boss (US-based) didn't like this and says he doesn't agree with it and won't support this. What are my rights?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Just my manager
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee
JA: Anything else you want the Lawyer to know before I connect you?
Customer: My contract says I work at the office but for the last two years I have home officed however this is not documented not sure this makes a difference but wanted to let you know.
Submitted: 1 month ago.
Category: Employment Law
Expert:  Ben Jones replied 1 month ago.

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

Expert:  Ben Jones replied 1 month ago.

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

 

Customer: replied 1 month ago.
I don't want to lose the option.
Expert:  Ben Jones replied 1 month ago.

OK, thanks, leave it with me please and I will reply on here later today

Expert:  Ben Jones replied 1 month ago.

Many thanks for your patience. As a starting point you can remind the employer that this is an official and contractual policy and that if they refuse to honour it they will be acting in breach of contract. The issue is that there is nothing stopping them from refusing to honour it and then the ball is I your court to decide how to deal with this situation.

 

From a legal perspective, 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. 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 1 month 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 1 month 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