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Constructive Dismissal

 
Constructive Dismissal

I have taken legal advice and I have been advised that by bouncing my salary cheque, not making any attempt to rectify the matter and not being supervised for over a month I have been 'constructively dismissed'.

Is there a certain way in which I should write my termination letter. I am not proposing to give him notice.

Thanks

KarenDee

14/03/2008 18:06:49

It depends on what you mean by constructively dismissed. If you mean you want to take your employer to a tribunal, I wouldn't waste the time and energy unless you have a better case than you have said.

The supervision aspect is irrelevant.

If you just want out without notice, then the letter needs to state that on the basis that your employer has failed to pay you, they are in breach of the employment contract and you are therefore taking it that they have unilaterally terminated said contract from XX date. If they still owe you money, then you should also give them 28 days to pay the full amount or you will take legal action to recover it, and costs, without further notice.

shikahra

14/03/2008 18:27:34

Constructive Dismissal - Thanks

Thanks for the help. I work for a criminal defence lawyer by the way and am the only employee so unfortuantely do not have anyone else to stand by me!

I did think it was more likely that breach of contract would be considered rather than construcive dismissal. If I don't go back am I entitled to money I've worked for thus far together with the bounced salary? Also do I have to give him 28 days to pay.

A number of things have happened over the last few months leading to this decision:-

1. Changing the payment date of my salary. 2. He's been off work now for 4-6 weeks and has only contacted me on four occasions. 3. The Solicitors Regulation Authority have now been in to 'investigate' matters.

Would be grateful for your comments!

KarenDee

16/03/2008 12:04:21

Bad month for people working for lawyers, I see :-)

Failure to pay is breach of contract and so if you resign with immediate effect you are entitled to be paid up to the date of leaving plus any holidays owed. I don't see that you have case for constructive dismissal anyway, but even if you had a great case - they more often than not loose! I'd cut my losses and spend the energy on something more important - like getting a new job.

The 28 days is a "safety factor" - you may, if you wish, reduce it to less, but it very much depends on the route you wish to take. An employment tribunal would treat your case as requiring a "grievance" (you owe me money, pay up!), and this MUST be given 28 days or they will not accept jurisdiction. However, if you are going after the money alone, then I would recommend the speedier route of county court. The process is simple and you can do it yourself. I don't know whether they have a "time limit" - but if you phone the clerk of your local county court and explain, they are very helpful and can tell you all you need to know.

You should also be aware that if you go down the court route, you are entitled to calim any losses caused you as a result of not being paid, provided that you can prove them. So interest on an overdraft or bounced payment charges can be added, providing, as I said, you can evidence them and the fact that they relate to the money you were owed not being paid.

Good luck with it all.

shikahra

16/03/2008 12:33:02

Thank you once again. Just a further couple of questions.

1. Should I set out what I am owed? 2. Also My cheque bounced on the Monday and I continued working until Friday, mainly out of loyalty and the promise that he would get back to me about my salary. I wanted to give him the benefit of the doubt but on the occasion that I did get to speak to him he just said 'he didn't know when I would be paid'. Does that cause problems or just show that I gave him some time to come back to me in the first instance before making a rash decision?

KarenDee

16/03/2008 14:34:30

Also I have decided that I will give him the 28 days just in case I decide to go to a tribunal. I think this is unlikely as I don't want anything other than what I am owed.

Do you also think I should offer him the chance to discuss matters with me formally?

KarenDee

16/03/2008 14:40:16

Pretty much all of that is up to you. The legal position is that he is legally required to pay you on the date set out contractually (or established by custom and practice if you haven't had a written statement of your contractual terms). Continuing to work for a few days doesn't matter, as you raised it straight away, and this shows that you did not accept the situation. Frankly, I'd be hard pressed to think of an acceptable good reason for failing to pay you. "I'm broke" - translates as "I'll not be able to ever afford to pay you again in this lifetime". "I forgot to transfer money from another account" - translates as "... which also has no money in it or I'd have done it by now". I'm sure you catch my drift. Of course, if your mortgage company, supermarket, and garage are prepared to wait for you to pay them (if you ever do) on the same basis, you may be inclined to be charitable about it. But I wouldn't recommend it. He knows he owes you money. He knows you can't just let a wage slide by. If he had anything worth hearing to say, it should have been said by now.

shikahra

16/03/2008 15:02:53

You certainly have put my mind at rest.

Thank you once again.

KarenDee

16/03/2008 15:06:21

PS - I doubt the Regulators called in for a chat and a cup of tea, or to worry about your wages. So sooner rather than later would be my advice, or there may be no money to claim.

shikahra

16/03/2008 15:15:50

Part Time Working

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 states that Part Time Employees should be treated the same(pro rata) as a full time employee.

I work 25 hours per week and work on average 350 hours overtime per annum.

What is the situation if the Part timer has the same work load as the full timer and everything bar the workload is pro rata?

And if that said partimer (me)is having to work overtime both through lunch, taking work home and having to arrange additional childcare to cope with their work load?

My Manager says that he is treating me the same as a full timer?

Confused as the full timers do not have to work overtime to cope with their workload?

Any advice would be appreciated as i have just had my appraisal and I feel that I am having to work harder than the full timers just to get the same percentage pay increase and outcome.

Thank you

Rustylee1

18/03/2008 00:03:58

Not entirely sure here about what your employer is suppposed to be doing wrong - surely the amount of overtime presently required of you might reflect a workload 'peak' and what's wrong in the longer term with retaining you on part-time conditions ?

If you consider the overtime requirements excessive or unreasonable you ought to point this out to them though - it's usually only acceptable to require a 'reasonable' amount of overtime working and it may be getting into some discrimination territory with a part-timer to insist on much different.

bubbles_once

18/03/2008 08:25:38

This one is potentially very messy, and I doubt you will get any satisfaction. For starters, you will have to evidence that your workload is equally heavy to that of a full-time employee. That doesn't mean that you do the same job or have the same responsibilities - it means you have to prove that your employer has insisted on the same amount of work being done, and has insisted that you must work overtime to achieve this, and that this is not reasonable. Even if you could then evidence this, the question is what you do about it. There are no laws regulating workload, so what would you claim against them? Your employer is likely to claim that your production levels are the problem and that your failure to meet the required standards of output have necessitated the overtime etc - making it a performance issue. Then it gets to big arguments with littile evidence, you resign or get sacked for something... and you will probably end up with nothing.

I'd suggest that it's a case of either refuse to do overtime, and take the risk, or get another job. Personally I'd recommend the latter.

shikahra

18/03/2008 09:07:51