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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 67806
Experience:  Qualified Solicitor
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I work for the bar council and have been discriminate

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I work for the bar council and have been discriminate against due to my disability. I have been left without work and is currently still ongong. I have engaged in ADR through ACAS. I am currently still employed however signed off sick by the bar council not my doctor and waiting for a Occupational Health review (third). It has been a month and I am unpaid. can I resign and file an unfair dissmissal
JA: Have you discussed this discrimination issue with a manager or HR? Or with a lawyer?
Customer: Yes
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee. Yes belong to Trade union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

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? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 23 hours ago.
Thank you Ben. I have been working there since October 2019 - Under a year

Thank you. 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?

Customer: replied 23 hours ago.
just on the point about 2 years of services. I was of the understanding that when constructive dismissal is derived from a discriminatory act the years of service does not matter.Also regarding raising an grievance, does the fact I am already engaging in for previous discrimination matter?

Sorry yes I should have clarified that, it does not apply for discrimination-related resignations or dismissals.

You can also argue that you have already tried to resolve matters in relation to other issues so not expected to raise a grievance each time an issue arises, plus it is not a legal requirement to do so anyway.

Does this clarify things a bit more for you?

Customer: replied 22 hours ago.
it does. Thank you Ben. You have been most helpful
Customer: replied 22 hours ago.
would you say I currently have a likely prospect to a claim under constructive dismissal?

I have the bare minimum of details unfortunately but if you have been discriminated due to a disability and the employer is not taking steps to deal with it reasonably and/or the discrimination continues then there are indeed potential grounds. Also note that you do not have to resign to claim for disability discrimination alone as that can be done whilst still employed

Ben Jones and 4 other Law Specialists are ready to help you
Customer: replied 22 hours ago.
Sure, I understand. Thank you again. This has been very useful.

All the best