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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 60498
Experience:  Qualified Solicitor
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No. This is my situation. The Company was bought out two

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No. This is my situation. The Company was bought out two years ago. Since then my role has developed and become more demanding. In my busiest time which is Spring I was very stressed which triggered a psoriasis flare up which hasn't receded. This concerned me as I had a brain tumour 6 years ago which has left me with some symptoms and am now partly disabled. Consequently, I have been concerned about my health and no longer want to do this job and I do not to be stressed again. I have thought about taking stick leave. I am 52 and I want to start my own consultancy which I can develop and grow over the rest of my working life. The business is under pressure and they will demand more of my role. I don't want to do this role for much longer and I am not the heavy weight buyer I think they will need as the business develops and as my colleague has informed me and reading between the lines the role will expand and become even more demanding in the future. I have expressed my intention to set up on my own next year to my colleague. Consequently, he will have told this to my Manager. I think they would be happy for me to leave and do this. Ideally, I want to leave at the end of February and start my consultancy from March. What is my position and what should I do you think I should do? Ideally, I want to be made redundant as have I been there since May2011. I am worried about my health if I stay. Sarah Bowe
Customer: replied 6 days ago.
How long until I receive a response?
Customer: replied 6 days ago.
It is late now, I am going to sleep. I will try again tomorrow.

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

Did you transfer to the current employer under TUPE?

Customer: replied 5 days ago.
Sorry, I don’t understand?

Not to worry, you cannot realistically be made redundant if there is no redundancy situation in the first place. So if your job continues to exist and the employer still needs someone doing it, there will be no redundancy.

 

What you can try is to approach them to see if they are willing to negotiate an agreed exit, with a settlement but there has to be some incentive for them usually, or they would have to potentially be facing some sort of claim from you and be forced to settle to avoid that.

 

If anything, and it is not that certain, 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).

 

Whilst you could take the risk of resigning and then claiming constructive dismissal, 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?

Customer: replied 5 days ago.
Thank you. Another question -I think my employer will be motivated to a a settlement agreement. How would you recommend I proceed with negotiating this?
Customer: replied 5 days ago.
Also, maybe mistakenly I have told my managers right hand man of plans to start my own company.

There is no right or wrong way to start negotiations over a settlement as it really depends on the employer and who you are dealing with. It should generally be done by letter, marked without prejudice, or by asking them to have a meeting with you, again on a without prejudice basis, to just get the ball rolling and at least start a discussion over these plans and get a feel of their position on this.

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