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Ben Jones
Ben Jones, UK Lawyer
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I am 66 years old. dob XX XX X. I could have retired at 65.

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I am 66 years old. dob XX XX XX . I could have retired at 65. I am a permanent full time employee for 12 years since 2003. Before that I was five days a week consultant with my current employer since Oct 1998. This is the normal time of year my employer sets work programmes and objectives for the coming year. Over the last 12 months a significant portion of my senior managerial workload has ceased or been transferred to others. (The company is getting smaller). I turned down voluntary redundancy 3 years ago. The company called me to a meeting and said before they set my work programme for the coming year they wanted to know my plans. When am I going to retire, do I want to work full time? Question - are their actions lawful? Is this a case of constructive dismissal? Nigel  XXXXXX *********** please reply to *****@******.***

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you ever raised any complaints with the employer about this?
Customer: replied 2 years ago.

No not yet, I want to check my legal position first

Thank you for your response, which I will now review. I will get back to you as soon as possible. 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. The employer’s actions could potentially amount to age discrimination because they are asking questions about your retirement plans when these should be left down to you and you should not be placed under any pressure to retire or leave. Whilst the actual asking of these questions may not necessarily be serious enough to make this into a strong case of discrimination, the issue really is what happens next and how the employer treats you as a result. If you refuse to answer their questions, which you have every right to do, they should not treat you detrimentally. For example they should not make changes to try and force you to make up your mind or to decide that it is time to retire because that is when a clearer case of discrimination would occur.
Similarly, this could also amount to constructive dismissal but maybe not just yet – not simply by the employer asking these questions. It would be a stronger case if they actually took steps to try and undermine your position or to perhaps try and force you out in some way.
Constructive dismissal 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 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 it, or its employees, have broken the implied contractual 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 and going through the process, 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 unreasonable delay so as not to give an impression that the employer's breach had 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 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
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.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.


Thank you for your detailed answer to date.

Further background is a follows:

a) over the past months my senior managerial responsibilities have been reduced for example i/ reducing my role in representing the company to the EU Commission and internationally generally b/ transferring about 40% of my management role to another person

b) I am a companies act Director of i/ another company appointed by my company to represent them (ie the appointment is at my employer's behest) ii/ a third company where I was invited personally to be a Board member not representing my employer but with my employers full permission

Does the above alter your answer to date in any way ?

Thanks Nigel

Hello Nigel, the removal of some of your duties and the way you have been treated in that respect will be a relevant factor and would support your case for constructive dismissal. If they are linked to your age and the fact that the employer is treating you detrimentally because of that and hoping you may retire soon then it would also support the case for age discrimination. There will have to be a link between those actions and your age though, although that is not required for the constructive dismissal route.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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