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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50749
Experience:  Qualified Solicitor
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Hi. I have currently been off work with severe depression since

Customer Question

Hi. I have currently been off work with severe depression since the start of december. i have however found out that one of the directors has been telling other employees about the contents of my sick note and making jokes about this, i thought i was ready to return but now feel as if i cannot return with everyone knowing. I disclosed my illness out of courtesy and as i see it you do not legally need to tell the employer your illness but i wanted to be truthful, i have firm evidence from other employees confirming they have been told by this director and also what jokes have been made and also implying i was faking my illness which i certainly was not. I told them the day after i was took to hospital and have subsequently backed this up each month on time with doctors notes. I now feel i want some compensation and i can then leave and seek employment elsewhere as they have made it to uncomfortable for me

Do you think i have a case here

many thanks
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know how long have you worked there for?
Customer: replied 5 years ago.

Hi, i worked for them from 2003-2007 and returned in 2008 after 10 months at another company and have been there consistently since

Many Thanks

Expert:  Ben Jones replied 5 years ago.
This could potentially amount to constructive dismissal, which occurs when the following two elements are present:

a) Serious breach of contract by the employer; and
b) 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 they, or their employees, have broken the implied 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, 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 undue delay so as not to give an impression that the employer's breach has 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 1 year's continuous service. There is a time limit of 3 months less a day from the date of resignation to submit a claim in the employment tribunal.

As an alternative to resigning, the employer may be approached on a without prejudice basis (i.e. off the record) to try and discuss the possibility of leaving under a compromise agreement. Under a compromise 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.

Just to make a final, yet important point, constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee. Therefore, constructive dismissal should only be used as a last resort and all else fails.

In addition to the above you can also treat this as a potential case of disability discrimination as your condition could amount to a disability in law. Thisns a claim the can be made at the same time as the one for constructive dismissal. 

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