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When does it become constructive dismissal?...

 
When does it become constructive dismissal??

I recently posted a query and am extremely grateful for the response which was posted- thank you!

Two weeks ago, I had a discipline appeal meeting to contest a first written warning. With the support of my trade union, I am confident that the decision will be overturned.

The interviewing manager wanted to investigate further new issues I raised during the meeting and asked for extra time to look into the matters.

However, I had intended to hand in my letter of resignation on the day of the discipline appeal meeting, but was advised by my union to hold off resigning until after the outcome of the appeal had been given to me. The notice period for my company is seven weeks and I previously asked if it is possible to argue for my notice period to have started from the date of the appeal meeting (i.e. when I originally intended to hand in my resignation). The helpful reply suggested either handing in my notice with immediate effect or stating I wished to work a reduced notice.

When I resign, would I have a case for constructive dismissal? The reason for resigning would be the real stress and de-motivation I have felt having been put through the company's discipline procedure unnecessarily. Throughout the period between the initial investigation and the disciplinary hearing meeting (at which the first written warning was given), I regularly sent emails to HR stating that the correct procedures were not being followed and that the issue regarding my performance for which I was being disciplined was the same as other colleagues who were making the same mistake but were not being disciplined. Nothing was done to look into my points prior to the disciplinary hearing meeting.

However, I raised evidence regarding the fact that I was being disciplined when others were not at the recent disciplinary appeal meeting, and it is this new information which is being further investigated. As I mentioned earlier, with the support of my trade union, I am confident the first written warning will be overturned.

What I would be interested to know is if/ when the first written warning is cancelled, would I be eligible to claim constructive dismissal? I want to resign anyway as my confidence in the company's management and discipline procedures is badly damaged.

Alternatively, would I be best advised to make a formal grievance against my manager who treated my case differently from colleagues who made the same mistake which lead to me being put forward for disciplinary action? (My evidence is indisputable and has been reviewed by my trade union).

While I want to leave the comapny, I also want to ensure I take full advantage of any recourse available to me.

I would be grateful for any suggestions for action I should take and any preparations I should make now.

Many thanks.

scotty

21/03/2006 12:38:42

When does it become constructive dismissal??

Originally posted by scotty:
I recently posted a query and am extremely grateful for the response which was posted- thank you!

Two weeks ago, I had a discipline appeal meeting to contest a first written warning. With the support of my trade union, I am confident that the decision will be overturned.

The interviewing manager wanted to investigate further new issues I raised during the meeting and asked for extra time to look into the matters.

However, I had intended to hand in my letter of resignation on the day of the discipline appeal meeting, but was advised by my union to hold off resigning until after the outcome of the appeal had been given to me. The notice period for my company is seven weeks and I previously asked if it is possible to argue for my notice period to have started from the date of the appeal meeting (i.e. when I originally intended to hand in my resignation). The helpful reply suggested either handing in my notice with immediate effect or stating I wished to work a reduced notice.

When I resign, would I have a case for constructive dismissal? The reason for resigning would be the real stress and de-motivation I have felt having been put through the company's discipline procedure unnecessarily. Throughout the period between the initial investigation and the disciplinary hearing meeting (at which the first written warning was given), I regularly sent emails to HR stating that the correct procedures were not being followed and that the issue regarding my performance for which I was being disciplined was the same as other colleagues who were making the same mistake but were not being disciplined. Nothing was done to look into my points prior to the disciplinary hearing meeting.

However, I raised evidence regarding the fact that I was being disciplined when others were not at the recent disciplinary appeal meeting, and it is this new information which is being further investigated. As I mentioned earlier, with the support of my trade union, I am confident the first written warning will be overturned.

What I would be interested to know is if/ when the first written warning is cancelled, would I be eligible to claim constructive dismissal? I want to resign anyway as my confidence in the company's management and discipline procedures is badly damaged.

Alternatively, would I be best advised to make a formal grievance against my manager who treated my case differently from colleagues who made the same mistake which lead to me being put forward for disciplinary action? (My evidence is indisputable and has been reviewed by my trade union).

While I want to leave the comapny, I also want to ensure I take full advantage of any recourse available to me.

I would be grateful for any suggestions for action I should take and any preparations I should make now.

Many thanks.


Constructive dismissal is very hard to prove. So cases that leading lawyers/barristers claim are constructive dismissal are unfound whilst others are not. So it is a lottery where you have a very high chance of failure.

You are better of pursing your manager under a discrimination law. And yes you can twist them for example if the only difference between you and your colleagues is that you are Welsh then you can use the Race relations act. Plus unfair dismissal claims have limited and smaller awards whilst discrimination claims have no limits on the compensation amount paid out.

Slough

21/03/2006 23:52:15

IS SPYING ALLOWED

GOD THIS IS COMPLICATED!!!! I HAVE JUST GIVEN A SICK NOTE FOR TWO WEEKS INTO MY PART TIME JOB, I HAVE ALSO JUST STARTED A VENTURE OF A MOBILE CATERING VAN (STARTED TRADING 9TH MARCH) AS I HAVE BEEN SICK I HAVE NOT DONE EITHER JOBS (assistant on van) IT AS NOW BECOME APPARENT THAT MY PART TIME EMPLOYEES THINK I HAVE BEEN WORKING ON VAN WHILST SICK. ON ONE OCCASION LAST WEEK I RECEIVED A PHONE CALL FROM ASSISTANT ON VAN THAT THEY HAD FORGOTTEN THE ALARM KEY AND COULD I DROP IT OFF, WHICH I DID, THE VAN HAD CLOSED FOR BUSINESS AND I STAYED AROUND 20 MINS TALKING TO THE ASSISTANT. MY PARTNER ALSO WORKS AT MY PART TIME JOB AND AS BEEN INFORMED (CONFIDENTIALLY) THAT IT WOULD SEEM LIKE A GOOD IDEA FOR ME TO GIVE MY NOTICE IN AS THEY HAVE SEEN ME WORKING THERE WHILST ON SICK!!!!!! (THE OCCASION MENTIONED BEFORE WHERE IT WAS CLOSED AND I DROPPED SOMETHING OFF) I AM NOW ON MY LAST WEEK OF SICKNESS AND HAVE NOT WORKED ON THE VAN (I WOULD NOT DO THAT) BUT APPERENTLY MY EMPLOYERS HAVE SENT SOMEONE UP TO SPY AND VIDEO ME WHICH THEY CANT COS I AM NOT THERE. ITS JUST MAKING ME VERY UPSET AND ILL AND I AM DREADING GOING BACK TO WORK I AM ALSO PETRIFIED OF GOING ANYWHERE NEAR THE VAN IN CASE I AM IN BREACH OF ANYTHING, PLEASE PLEASE HELP ME. REGARDS

DEVILOXO

31/03/2006 17:42:13

SPYING

GOD THIS IS COMPLICATED!!!! I HAVE JUST GIVEN A SICK NOTE FOR TWO WEEKS INTO MY PART TIME JOB, I HAVE ALSO JUST STARTED A VENTURE OF A MOBILE CATERING VAN (STARTED TRADING 9TH MARCH) AS I HAVE BEEN SICK I HAVE NOT DONE EITHER JOBS (assistant on van) IT AS NOW BECOME APPARENT THAT MY PART TIME EMPLOYEES THINK I HAVE BEEN WORKING ON VAN WHILST SICK. ON ONE OCCASION LAST WEEK I RECEIVED A PHONE CALL FROM ASSISTANT ON VAN THAT THEY HAD FORGOTTEN THE ALARM KEY AND COULD I DROP IT OFF, WHICH I DID, THE VAN HAD CLOSED FOR BUSINESS AND I STAYED AROUND 20 MINS TALKING TO THE ASSISTANT. MY PARTNER ALSO WORKS AT MY PART TIME JOB AND AS BEEN INFORMED (CONFIDENTIALLY) THAT IT WOULD SEEM LIKE A GOOD IDEA FOR ME TO GIVE MY NOTICE IN AS THEY HAVE SEEN ME WORKING THERE WHILST ON SICK!!!!!! (THE OCCASION MENTIONED BEFORE WHERE IT WAS CLOSED AND I DROPPED SOMETHING OFF) I AM NOW ON MY LAST WEEK OF SICKNESS AND HAVE NOT WORKED ON THE VAN (I WOULD NOT DO THAT) BUT APPERENTLY MY EMPLOYERS HAVE SENT SOMEONE UP TO SPY AND VIDEO ME WHICH THEY CANT COS I AM NOT THERE. ITS JUST MAKING ME VERY UPSET AND ILL AND I AM DREADING GOING BACK TO WORK I AM ALSO PETRIFIED OF GOING ANYWHERE NEAR THE VAN IN CASE I AM IN BREACH OF ANYTHING, PLEASE PLEASE HELP ME. REGARDS

DEVILOXO

31/03/2006 18:05:36

SPYING

Originally posted by DEVILOXO:
GOD THIS IS COMPLICATED!!!! I HAVE JUST GIVEN A SICK NOTE FOR TWO WEEKS INTO MY PART TIME JOB, I HAVE ALSO JUST STARTED A VENTURE OF A MOBILE CATERING VAN (STARTED TRADING 9TH MARCH) AS I HAVE BEEN SICK I HAVE NOT DONE EITHER JOBS (assistant on van) IT AS NOW BECOME APPARENT THAT MY PART TIME EMPLOYEES THINK I HAVE BEEN WORKING ON VAN WHILST SICK. ON ONE OCCASION LAST WEEK I RECEIVED A PHONE CALL FROM ASSISTANT ON VAN THAT THEY HAD FORGOTTEN THE ALARM KEY AND COULD I DROP IT OFF, WHICH I DID, THE VAN HAD CLOSED FOR BUSINESS AND I STAYED AROUND 20 MINS TALKING TO THE ASSISTANT. MY PARTNER ALSO WORKS AT MY PART TIME JOB AND AS BEEN INFORMED (CONFIDENTIALLY) THAT IT WOULD SEEM LIKE A GOOD IDEA FOR ME TO GIVE MY NOTICE IN AS THEY HAVE SEEN ME WORKING THERE WHILST ON SICK!!!!!! (THE OCCASION MENTIONED BEFORE WHERE IT WAS CLOSED AND I DROPPED SOMETHING OFF) I AM NOW ON MY LAST WEEK OF SICKNESS AND HAVE NOT WORKED ON THE VAN (I WOULD NOT DO THAT) BUT APPERENTLY MY EMPLOYERS HAVE SENT SOMEONE UP TO SPY AND VIDEO ME WHICH THEY CANT COS I AM NOT THERE. ITS JUST MAKING ME VERY UPSET AND ILL AND I AM DREADING GOING BACK TO WORK I AM ALSO PETRIFIED OF GOING ANYWHERE NEAR THE VAN IN CASE I AM IN BREACH OF ANYTHING, PLEASE PLEASE HELP ME. REGARDS


First rule of writing posts on the internet is not to write in CAPITAL letters. Writing in capitals means that you are shouting. Lots of people don't reply to such posts.

Slough

31/03/2006 19:18:43

SPYING

In answer to your question if your employer has not been following you around with a private detective they will have no proof that you were on sick leave or were working for yourself.

It simply looks like a case of you being on sick leave so long that they want to get rid of you.

The only advice I can give you is to go back to work, work hard and try not to get sick. Also when you do go back to work make it clear how glad you are still not sick and talk about all the money you have lost from your own business etc. If you do get sick again imply that you have a disability verbally and hint that if they sack you, you will take legal action.

Slough

31/03/2006 19:23:55

Am I too late?

Brief summary. I was attacked by a client in dec 07. I immediatly let management know I wished to to take action. I was ignored. Despite several emails reueting support and advicenI was continued to be ignore. In april 08 I raised the matter formally in a grievance. This was ignored. A month later I was suspended over a trivial unsubstaniated allegation. On my return I raised several other grievances including: health and safety, unfair suspension, and failure to follow both the disciplinary and grievance procedures. I took them 4 months to give me a hearing. During this time, I was is close contact with my union rep, who advice was not to uit, although I made it clear that I thought I had a case of constructive dismissal. He informed me that unless I saw the procedures through, they would not be accepted by the court. Last week I finally got my outcome of my grievance hearing. All concluded as unfounded, like I suspected. This for me was the final straw, and I wish to resign in the next week. I have reams and reams of evidence and paperwork that substantiate what I claim and believe that if this was viewed by a court, at the very least I could prove 5 clear breaches of my employment contract. What is my positin now? Can I resign and claim constructive dismissal with the biased outcome of my grievance hearing as the final act. I have found my union to be absolutely awful, totally unsupportive and not very good at giving me information, or advocating on my behalf. Any advice would be really helpful

staceyjamie

16/01/2009 19:55:09

I can't comment on the rest of your unions advice, but they were correct in that you would have been ill advised to quit before allowing the procedures to play out. If you wish to claim constructive dismissal, and if the procedures are fully played out now, then, yes, this is the time to do it. BUT, and it is a very big BUT, I have to caution that constructive dismissal cases are the hardest to win and I could not in all honesty recommend that you quit unless you have had clear guidance that you may have a case. If you do not have confidence in your union advice, and if they cannot provide you with a second opinion, I would suggest some independant legal advice before you take a step which is irreversible.

shikahra

16/01/2009 21:30:18

advice

Hiya. Ok. Thanks for that. The free legal advice I got has told me my company, have breached my contract of employment in 4 areas. Health and safety, equipment, grievance and disciplinary procedures. Would the best things be to raise these as tribunal issues separately, and then claim constructive dismissal. Im confused, would I address all these issue under constructive dismissal, or can I address each individually as a stand alone complaint. This has been going on for months and I just want my life back. Basically would it be best to get the tribunal papers in for the individual complaints in and remain in employment. Or.get them in, and leave? I may have an offer of a new job in 3 weeks time, which would be great, but I will not let this matter just drop. It needs to be investigated. Im just trying to work out the right way.

staceyjamie

19/01/2009 13:46:22

5 grievances, I disciplinary, my word against theirs..whats my next step?

Brief summary. I was attacked by a client in dec 07. I immediatly let management know I wished them to take action. I was ignored. Despite several emails reueting support and advice, I was continued to be ignored.

In april 08, I raised the matter formally in a grievance. This was also ignored. A month later I was suspended over a trivial unsubstaniated allegation. On my return to work I raised several other grievances including: health and safety, unfair suspension, and failure to follow both the disciplinary and grievance procedures. I took them 4 months to give me a hearing. During this time, I was is close contact with my union rep, whose advice was not to uit, although I made it clear that I thought I had a case of constructive dismissal. I have since sought indepent legal advice form 2 sources, both of whom believe I have a case of constructive dismissal.

My Union informed me that unless I saw the procedures through, they would not be accepted by the court. This has been going on since June 08. Last week ( jan 09), I finally got my outcome of my grievance hearing. All griavances were concluded as unfounded, like I suspected. This for me was the final straw, and I wish to resign in the next week. I have reams and reams of evidence and paperwork that substantiate what I claim and believe that if this was viewed by a court, at the very least I could prove 5 clear breaches of my employment contract.

What is my position now? Can I resign and claim constructive dismissal with the biased outcome of my grievance hearing as the final act. I have found my union to be absolutely awful, totally unsupportive and not very good at giving me information, or advocating on my behalf. Any advice would be really helpful

Or, alternatively, should I raise my individual grievances H&S, unfair suspension etc as stand along cases before the tribunal. With the option of leaving and claiming CD if the situation deteriorates and I am further forced to leave.

I am very worried that poor union advice and support could see me outside the tribual time frames to raise cases. This started in June 08, and as of Jan I9 09, I have only just got the report from the grievances. 6 months later. Surely this is not right. Surely there must be a time limit in what is seen as reasonable to wait for procedures to take place. After all these are outlined in our contract/handbook.

I may have the possibility of starting a new job soon, but do not want to undo all the good work, and patience I have had by making a bad decision. Any help much appreciated

staceyjamie

19/01/2009 13:57:34