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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 62413
Experience:  Qualified Solicitor
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I would like to know what my rights are as an employee of

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i would like to know what my rights are as an employee of the NHS? I am a medical sec
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: I put in a formal complaint on 3rd June 2019. This still has not been resolved yet. In the meantime I was off sick and then they sent me to work at another site as I said that I could not go back to work in the that environment. Whilst working at another site I was working on my own and hot desking without any support. I was off sick again with work related stress. They have finally done the investigation and I have stated that there is no way that I could go back to work in that same department again. I have yet to have a meeting with the outcome but I think they are going to send me back to the department to work with the colleagues who were not supportive and where I felt bullied and harrased and due to that my work suffered and I was making errors. I would like to know what my rights are if they give me no option but to go back to the same situation. To me they haven't actually resolved anything.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am employed and am medical secretary who is off sick with work-related stress at the moment. I do not belong to a union.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I am due to retire in November of this year.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How long have you worked there for?

Customer: replied 10 days ago.
About 6 years in total but 4 years as a permanent member.
Customer: replied 10 days ago.
No that's fine.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. If anything, this could potentially amount to constructive dismissal in the end, 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?

Customer: replied 9 days ago.
Thank you for your response.

All the best

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