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Constructive Dismissal

Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
Before anyone says it, I am going to call ACAS tomorrow! I just wondered if anyone had been a 'victim' of constructive dismissal? (or who knows anyone who has).

In Aug 2003, I started a job as a Clerical Assistant working full time. I didn't get a contract until July 2004 and even then I didn't sign it as the salary was wrong and they agreed to change the contract to the right figure and then I was to sign it. I never got a revised copy so never signed anything - though I do understand that by me going into work every day and them paying me every month that implies that I accept the contract.

Eighteen months ago, a colleague (who worked 30 hours a week - I work 35) went on maternity leave and I took on half of her job whilst continuing to do my own. I had very little training in her job and should still be being supervised today, but the managers seem happy to let me get on with it ("you must be doing it alright cos noone's complained yet"!!). I never wanted to take on this extra work and have told them this from the outset. I feel very unsure about doing it with such little training and support but it needed doing so I did it. I've been asking them to sort the situation out for months but nothing was ever done.

On Friday, I was called into my boss's office and told they were finally going to advertise my colleagues old job, and providing we recruit someone, that will reduce my workload - to my old job, you would have thought. However, the MD is convinced that relieving me of my 'extra' work, I wouldn't have enough to do to fill my fulltime hours, and thus plans to reduce me to parttime. His words then were "I assume you don't want to work parttime so I suggest you start looking for something else".

Surely he can't do this?! My original workload hasn't decreased any so despite relieving me of the extra, I still have a fulltime job to do. I can't survive on parttime wages and therefore he is forcing me to resign which is constructive dismissal (yes?). Surely reducing my hours to parttime is 'breach of contract'?

Any ideas anyone?

I've wanted to leave since they gave me my colleagues work, which just highlighted the poor management of the company, and I have been looking for other employment for the last six months, but with little success (there haven't been that many jobs about, what with xmas etc). That said, I have been told by several temping agencies that I have the skills and they'd have no problem placing me. So obviously I want to go anyway, but they can't force me out like this.. can they? :(

Comments

  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    There's an interesting page here on constructive dismissal -

    http://www.compactlaw.co.uk/monster/empf8.html

    Which, if I'm reading it correctly, says that your circumstances would be equivalent to constructive dismissal (assuming you resign), but that the tribunal might find in favour of the employer because it is for "reorganisation".

    You need to check it out properly obviously. If your job has a union consider joining it (unless they don't take on existing grievences).
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Thanks for your reply, Mist.

    I see what you're saying. I don't know if it counts as 'reorganisation' - the job I used to do is still there and would have to be distributed between the remaining employees, most of whom I'm sure would have issues with that. For example, part of my role is answering the phone, I'm the only one there to do it, everyone else in the office has a more senior and technical (not to mention better paid!) role. However, the MD is suggesting that if I went, they would be the ones who have to pick up the phone which surely isn't part of their core role (wouldn't their contracts/job descriptions have to be rewritten to incorporate this too?).

    When you say I should I check it out properly, who do you suggest I talk to? Do you mean check out the company's plans, or discuss the whole thing with ACAS? Would the CAB be able to assist?

    Thanks again! :)
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    ACAS will have more information then CAB. From what you've said it does sound like you could have a case. Not having an offical contract, espically with the extra workload might help your case.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Thanks for your reply, Mist.

    I see what you're saying. I don't know if it counts as 'reorganisation' - the job I used to do is still there and would have to be distributed between the remaining employees, most of whom I'm sure would have issues with that. For example, part of my role is answering the phone, I'm the only one there to do it, everyone else in the office has a more senior and technical (not to mention better paid!) role. However, the MD is suggesting that if I went, they would be the ones who have to pick up the phone which surely isn't part of their core role (wouldn't their contracts/job descriptions have to be rewritten to incorporate this too?).

    When you say I should I check it out properly, who do you suggest I talk to? Do you mean check out the company's plans, or discuss the whole thing with ACAS? Would the CAB be able to assist?

    Thanks again! :)

    personally I would suggest ACAS or a solicitor well versed in company law. Additionally you or your parents may have access to a free legal advice line through insurance or work, they can be pretty good.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Yeah, Dad's got something he keeps referring to as ICAS through his job. And Mum's checking the Household Insurance Policy. Ironically, the extra work I took on was, in part, selling these Legal Expenses insurance policies!
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    That said, I have been told by several temping agencies that I have the skills and they'd have no problem placing me.
    Sounds familiar. :rolleyes:
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Temping agencies do say that, but then again they don't take people on who are a waste of their time.

    As for the OP, yeah, that sounds greatly like constructive dismissal. You don't strictly need a contract written down, as contracts can be implied or oral, and it can often make the company look worse that you don't have one signed.

    They cannot reduce your position from full to part without your consent, I don't believe. I think it is classed as making someone redundant, which would not be unfair, but would mean they would have to pay you redundancy money or keep you on the same salary. I know my dad's firm kept him on his supervisor's salary when they "reorganised" 8 roles into 4, but he doesn't get a raise.

    How did ACAS go?
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Just to update.. I've got myself a fabulous new job, on 50% more money than I'm on now and with a great company with great prospects!

    As for the above situation, I didn't phone ACAS in the end. I took my Dad's HR Manager's advice (he's a family friend too) and wrote a letter to my MD, stating that I was fully prepared to go back to my old full-time job and suggested that they retrained my colleague who used to do the job before she went on maternity leave. I did include the line "look forward to hearing your thoughts", but I gave him the letter over two weeks ago and haven't heard anything back from him.

    I've got to have a medical and a further meeting to discuss the finer details of my new job on Tuesday, so hopefully I should get the final offer letter by the end of the week and can hand my notice in on Friday (can't wait!).

    I'm now undecided as to whether I either drop the whole thing, or whether I write another letter to say "I'm handing in my notice because you've given me no other choice. I believe this is constructive dismissal, but understand you may prefer to treat this as a redunancy situation, in which case I look forward to discussing a redunancy settlement with you in the near future". What do you think? :yeees:
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Try for all you can get, I reckon.

    I certainly think you'd have a shout for constructive dismissal, and if you don't pursue it the company can do it to the next person they decide isn't needed anymore.

    I doubt it was personal, but the company needs to be taught a lesson. Fight them tooth and claw.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    You're right, Kermit. My Dad suggested I drop the whole thing, which I was going to do, but actually I think they deserve all they get!

    The office feels horrible today. Obviously I know I'm leaving but have got to keep a lid on it for the time being, but everyone seems prickly and on edge. Judging by a conversation I've just overheard, I've got a horrible feeling they've just "let go" another colleague at the end of this probationary period. It sucks cos he's so nice and good at his job, but again just highlights how crap they all are here!
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Nah, its actually very canny of the company to do that.

    Get all these probationary people in on reduced wages, get them to work hard thinking they'll get the job, and then boot them out- free of charge. Get another mug in, rinse and repeat.

    And that's what they'll have done with you. Drive you out, banking on you not fighting it. Person easily removed, cheaper replacement brought in, all's well that ends well.

    Fight the fuckers. Even if you lose, you won't lose much. And if you win, it'd be wonderful. Get legal advice about starting proceedings.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Oh, new problems now!

    I, shall we say, let my feelings be known in my resignation letter and now my boss is refusing to give me a reference.. And I need the reference to get the new job! Grrr...

    Luckily he's out of the office all day today otherwise he's running the risk of having to a biro shoved in his eye! I'm going to speak to him on Monday once I've clamed down.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    He has to give you a reference does'nt he? Just because the company has fucked you around, and you don't sit there and take it, doesn't mean he can refuse you a reference. If I were you, I would tell someone at your new job about the current situation at your old job - they may be quite understanding, and perhaps waive a reference? I not to sure though.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    nabbed from some random website -
    Employers do not have a legal obligation to provide job references unless the contract of employment specifically creates such an obligation. Therefore an employer can legally refuse to provide a reference regarding a former employee.
    There are limited exceptions to this general rule, such as in relation to employees who work in the financial services industry.
    Also where former employees have brought discrimination claims against the employer whilst employed the employer’s refusal could be viewed as an act of victimisation for having brought the previous discrimination claims. A refusal is more likely to be viewed as victimisation if the employer is unable to provide examples of reference requests being refused by employees who had not brought discrimination claims.

    Basically if you haven't formally made your position clear, I think I would do so now. Bring this up with HR if you have such a department, it may not fall to the manager to give a reference anyway.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Right, I've had words with him.. He's agreed to give me a reference (tho' probably not a glowing one!) on the condition I put in writing that I won't take 'my accusations' any further. Fine by me really, now that I've got this other job - and the two references I need - I don't want any more to do with the Company I work for now!

    He's also agreed to reduce my notice period to three weeks, making my last day the 24th Feb. That way I'll only start a week later than my new employers wanted, which I'm sure they'll be okay about.

    *sigh* Am just counting the days til I'm gone now!
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Right, I've had words with him.. He's agreed to give me a reference (tho' probably not a glowing one!) on the condition I put in writing that I won't take 'my accusations' any further. Fine by me really, now that I've got this other job - and the two references I need - I don't want any more to do with the Company I work for now!

    He's also agreed to reduce my notice period to three weeks, making my last day the 24th Feb. That way I'll only start a week later than my new employers wanted, which I'm sure they'll be okay about.

    *sigh* Am just counting the days til I'm gone now!


    If you sign anything like that make sure he gives you the reference first, or that the explicit condition of you writing it for the reference is included in the letter.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Right, I've had words with him.. He's agreed to give me a reference (tho' probably not a glowing one!) on the condition I put in writing that I won't take 'my accusations' any further.

    Get him to explicitly state that in a letter, signed by himself and witnessed by another person, that he will only give you a reference if you do not take any accusations further.

    That is actually victimisation, and would make any employment tribunal more favourable to yourself.

    I actually suspect what he is suggesting is illegal. I believe it could be construed as interfering with the course of public justice, though that's just an uninformed opinion.

    Please, seriously, get some legal advice before you agree to anything, verbally or in writing.

    Protect yourself. Do not withdraw anything without guaranteeing the result. And then take him to court anyway, as that sort of agreement I don't think is legal.
  • Former MemberFormer Member Posts: 1,876,324 The Mix Honorary Guru
    Also remember that you will have left your job before you get this "reference" so it's going to be difficult to force him to do anything. I really think that you'd be best off doing what kermit suggests and getting legal advice.

    The whole thing is very dodgy - I suspect that he knows that you've got a good case and is trying to hush you up.
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