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  • FIRST POST
    • moremore
    • By moremore 12th Feb 12, 7:25 PM
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    moremore
    How to write a constructive dismissal letter
    • #1
    • 12th Feb 12, 7:25 PM
    How to write a constructive dismissal letter 12th Feb 12 at 7:25 PM
    A good friend of mine will have to leave his job due to employer not making minor adjustment for him. His employer will not comply with A2W recommendation despite them making stoppage to his pay that would more than pay for the equipment he needs. They will not send him to OH as it cost them money to do so. Manager said that he can manage his disability but that not good enough as he needs the equipment that A2W recommended.

    To stop his health being damaged more he has decided to leave work as he cannot stand the stress of it anymore. I have been trying to help him with the letter but do not sure how to do it. Any help available please.
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  • Notmyrealname
    • #2
    • 12th Feb 12, 7:40 PM
    • #2
    • 12th Feb 12, 7:40 PM
    You don't write a letter claiming constructive dismissal to leave a job. You can state you're leaving because they refuse to make adjustments. And then you take them to tribunal.

    However the law only requires an employer to make reasonable adjustments, not any and all adjustments. What did your friend want to be done?
    • moremore
    • By moremore 12th Feb 12, 8:06 PM
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    moremore
    • #3
    • 12th Feb 12, 8:06 PM
    • #3
    • 12th Feb 12, 8:06 PM
    Thanks notmyrealname, she only want them to purchase equipment whcih is not expensive for such a big company. She tells me that her company has made many stoppages to her salary and that along would pay the equipment but they keep stalling saying we got to wait for it to be agreed. They have known about it for months now and her employer has not done anything about it.

    She feels that if she goes back to work she will be bullied, it would be unbearable for her and she would end up leaving anyway.

    So you are saying that all she needs to do is not go into work and that is OK for constructive dismissal. This will mean that she will not have to send in anymore medical certificates to her employer. sorry not good regarding employment law.


    She has a tribunal started for them not making adjsutment for her but will she have to change that now.
    • Annisele
    • By Annisele 12th Feb 12, 8:23 PM
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    Annisele
    • #4
    • 12th Feb 12, 8:23 PM
    • #4
    • 12th Feb 12, 8:23 PM
    It's not as simple as just not turning up and then being "OK for constructive dismissal". The vast majority of constructive dismissal claims fail at tribunal (I think SarEl, an employment barrister who posts here, has quoted figures of something like 3%).

    If she already has a "tribunal started", then presumably she's raised a grievance with the employer? What reason did it give for not providing the equipment? Can she work at all without it?
    • ohreally
    • By ohreally 12th Feb 12, 8:25 PM
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    ohreally
    • #5
    • 12th Feb 12, 8:25 PM
    • #5
    • 12th Feb 12, 8:25 PM
    If she simply stops attending work, the employer will in all probability sack her.

    If she wishes to claim constructive dismissal she should inform the employer of this, usually in the form of a resignation letter.

    The pay stoppages you mention, did she agree to this or has the employer taken a unilateral decision to deduct sums from her salary without agreement?
    Imagination is a mental faculty that serves as a coping mechanism for those who can't or won't accept reality - unicorns and dragons and wives who don't nag, are all figments of the "imagination".
    • caeler
    • By caeler 12th Feb 12, 8:27 PM
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    caeler
    • #6
    • 12th Feb 12, 8:27 PM
    • #6
    • 12th Feb 12, 8:27 PM
    What equipment are we talking? Keyboard, special chair, adjusting desk? how many people does the company employ. Answer these questions and you may get an opinion if she is in constructive dismissal territory.
    MFW | Debt Free since 2009 | NSD Fan | LC
    • moremore
    • By moremore 12th Feb 12, 8:43 PM
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    moremore
    • #7
    • 12th Feb 12, 8:43 PM
    • #7
    • 12th Feb 12, 8:43 PM
    If she already has a "tribunal started", then presumably she's raised a grievance with the employer? What reason did it give for not providing the equipment? Can she work at all without it?
    Originally posted by Annisele
    She got to prove she had a disability.


    The pay stoppages you mention, did she agree to this or has the employer taken a unilateral decision to deduct sums from her salary without agreement?
    Originally posted by ohreally

    Yes they have taken a unilateral decision to deduct sums from her pay without agreement one month she did not get paid at all


    What equipment are we talking? Keyboard, special chair, adjusting desk? how many people does the company employ. Answer these questions and you may get an opinion if she is in constructive dismissal territory.
    Originally posted by caeler

    Adjustment to desk the employer is very large firm over 3000 employees, fund not a problems for them.
  • Emmzi
    • #8
    • 12th Feb 12, 8:47 PM
    • #8
    • 12th Feb 12, 8:47 PM
    you cannot assume an employer has spare funds just because they are large.

    I think you are looking at a discrimination claim as opposed to constructive dismissal.

    1. Is your friend actually disabled as defined by the Equality Act, and have they given the employer evidence of this?
    2. Has your friend exhausted all internal procedures including the formal grievance procedure?

    Without both of those, hiding to nothing. And you need evidence of both.
    Debt free 4th April 2007.
    New house. Bigger mortgage. MFWB after I have my buffer cash in place.
    • moremore
    • By moremore 12th Feb 12, 8:58 PM
    • 402 Posts
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    moremore
    • #9
    • 12th Feb 12, 8:58 PM
    • #9
    • 12th Feb 12, 8:58 PM
    you cannot assume an employer has spare funds just because they are large.

    I think you are looking at a discrimination claim as opposed to constructive dismissal.

    1. Is your friend actually disabled as defined by the Equality Act, and have they given the employer evidence of this?
    2. Has your friend exhausted all internal procedures including the formal grievance procedure?

    Without both of those, hiding to nothing. And you need evidence of both.
    Originally posted by Emmzi
    What kind of evidence do they need she had Access to Work involved and it was there decision for her employee to adjust the desk. Years ago her employer sent her to their OH and it was confirmed then that she got underlying ill health. She has taken out grievances but it got worse since then, more bullying she had to suffer from managers. Employer does not want to lose her as she is a very good worker but at the same time they do not want to help her either.
  • Emmzi
    so is this an adjustmemts claim or a bullying claim?

    is the underlying condition actually a disability?

    who made the A2w referal?

    why do wages keep getting stopped/ docked?

    etc etc
    Debt free 4th April 2007.
    New house. Bigger mortgage. MFWB after I have my buffer cash in place.
  • Sambucus Nigra

    1. Is your friend actually disabled as defined by the Equality Act, and have they given the employer evidence of this?
    2. Has your friend exhausted all internal procedures including the formal grievance procedure?
    Originally posted by Emmzi
    These questions need answering to be honest before proceeding.
    • moremore
    • By moremore 12th Feb 12, 9:24 PM
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    moremore
    so is this an adjustmemts claim or a bullying claim?

    is the underlying condition actually a disability?

    who made the A2w referal?

    why do wages keep getting stopped/ docked?

    etc etc
    Originally posted by Emmzi
    It is both adjsutments and bullying

    That is what they are asking. GP says yes but that not enough for employer.

    My friend made the A2W referral

    She has written to them but they refuse to answer her.
  • ILW
    You have failed to answer the question as to whether your friend is registered disabled. This could make a world of difference.
    • moremore
    • By moremore 12th Feb 12, 9:36 PM
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    moremore
    You have failed to answer the question as to whether your friend is registered disabled. This could make a world of difference.
    Originally posted by ILW
    I am not sure but I thought that people do not have to registered as disabled anymore how to determine a disability is quite different under the Equality Act 2010.


    Perahps you know something different, if you do then please let me know. Thanks
    • zzzLazyDaisy
    • By zzzLazyDaisy 12th Feb 12, 9:38 PM
    • 12,138 Posts
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    zzzLazyDaisy
    If she leaves and claims constructive dismissal, she will need to show that she has exhausted the employer's grievance procedures first. If she does not do this she will have almost 0% of winning (I say almost, because there are never any total certainties with litigation, but her chances would be very slim indeed).

    Even if she goes through all the procedures, only around 3% of CD cases are successful.

    As others have asked - does she have an underlying health problem that amounts to a disability within the meaning of the Equality Act 2010? If the answer is no, then failing to act on the OHA's advice cannot amount to unlawful discrimination. If the answer is yes, and the employer has failed to comply, then they *may* have fallen foul of the EA, and that *may* also amount to CD... but the fact remains that unless she goes through the grievance procedure a CD claim is almost bound to fail.
    Last edited by zzzLazyDaisy; 12-02-2012 at 9:42 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 12th Feb 12, 9:42 PM
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    zzzLazyDaisy
    I am not sure but I thought that people do not have to registered as disabled anymore how to determine a disability is quite different under the Equality Act 2010.
    Originally posted by moremore
    Yes that is right. Registration of disability disappeared with the Discrimination Act 1995 (now the Equality Act 2010). The criteria for disability is set out in the Act and is quite complicated. Just because the OHA is involved and has made recommendations, it does not necessarily follow that the employee is disabled within the meaning of the Act.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • Sambucus Nigra
    a - I'm still wondering why this 'he' became a 'she' after the first post
    b - is it worth him/her coming on here themselves so that they can answer directly?
    • moremore
    • By moremore 13th Feb 12, 7:30 AM
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    moremore
    If she leaves and claims constructive dismissal, she will need to show that she has exhausted the employer's grievance procedures first. If she does not do this she will have almost 0% of winning (I say almost, because there are never any total certainties with litigation, but her chances would be very slim indeed).

    Even if she goes through all the procedures, only around 3% of CD cases are successful.

    As others have asked - does she have an underlying health problem that amounts to a disability within the meaning of the Equality Act 2010? If the answer is no, then failing to act on the OHA's advice cannot amount to unlawful discrimination. If the answer is yes, and the employer has failed to comply, then they *may* have fallen foul of the EA, and that *may* also amount to CD... but the fact remains that unless she goes through the grievance procedure a CD claim is almost bound to fail.
    Originally posted by zzzLazyDaisy

    Many thanks everyone for helpful reply, my friend/person has made internal grievance. Employer said they will make adjustments, they have change hours/times, but so far they keep putting off making the purchase of the desk. They keep saying they will purchasing desk and then manager changes it to say ‘the desk has not been agreed/approved' but they have a desk in the building that could use in the meantime, but surely that would not be suitable for my friendas the desk A2W recommended would be for specific for my friend taking into account size and disability and would make working conditions more difficult to carry out work in safety using a desk not recommended by A2W. My friend is holding out until they have actually purahsed the desk. She thinks the stoppages made by employer in her salary is more than enough to make the purchase.

    I think I will have to check the Equality Act to see if it falls within the disability act. I think the disabiliy is long term and will not get better. It has been ongoing for more than 10 years but got progressively worse since that time.
    Last edited by moremore; 13-02-2012 at 7:38 AM.
  • Emmzi
    I have an arthritic foot which grumbles every time the rain comes and it'll never get better but that doesn't make it a disability in legal terms.

    You are giving half answers to everything. Get your friend on here so they can give us proper answers. I'm not wasting any more time.

    we need to know
    - what the condition is
    - what the pay stoppages are for
    - if there has been an occ health (not A2W, that's a red herring) report and if so what it said
    - how many grievances in writing, about what, and what were the outcomes.

    I suspect you have actually been winding your mate up with "make a claim make a claim!" and not a bloody clue what the law says.

    May we now talk to the organ grinder please?
    Debt free 4th April 2007.
    New house. Bigger mortgage. MFWB after I have my buffer cash in place.
  • Emmzi
    https://forms.direct.gov.uk/forms/form/275/en/access_to_work-check_your_eligibility

    To be eligible for Access to Work you must be in paid employment or self-employment, or with a confirmed start date, and:
    • have a disability or health condition which affects your ability to work
    (so not neccessarily a disability)


    http://www.direct.gov.uk/en/DisabledPeople/Employmentsupport/WorkSchemesAndProgrammes/DG_4000347


    Access to Work might pay towards a support worker or the equipment you need at work. It can also pay towards the cost of getting to work if you cannot use public transport.


    (so it might not be the boss who is stalling on paying)


    Or is it not access to work at all but the Birmingham based Advance to Work?


    Who knows? Certainly not me. So unable to advise.
    Debt free 4th April 2007.
    New house. Bigger mortgage. MFWB after I have my buffer cash in place.
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