Unfair Constructive Dismissal - Do I have case and what are my rights?

darren.reading

Hi everyone

I believe that I have a pretty strong case for unfair constructive dismissal, at least I will have when I resign, and I have a few questions that I ask you more informed people to answer!

I have been in my role now for 15 months. I have had one annual appraisal from which no issues arose, and that was all up to a week or so back.

I had a meeting with my manager whereby he stated that recent performance had lacked technical knowledge and experience as well as showing a lack of commitment, and therefore he had recruited someone else to perform part of my role, but that I would continue with the other part (call these parts X).

I was to think about his proposal and am due to meet him again in a couple of days time to discuss the parts X that I will be doing going forward.

I have since found a copy of the job decsription for the job offered to 'my replacement' and the job description contains all of these parts X as well as the tasks I was due to leave behind.

This has obviously upset me so much, come as quite a blow, and more importantly than anything, left me with little to no respect for my manager causing me to feel unable to continue in my current role.

Having researched the situation, I feel that I am a victim of unfair constructive dismissal. Unfair as no appropriate procedures have been followed with regards performance appraisal (which is my managers excuse for wanting to change my role apparently) and constructive as it has left me feeling unable to work in my current role. Would you agree?

If so, what rights do I have?

If I resign, do I need to work out my notice period, or because the situation has become so unbearable and because my employer has made me feel unable to carry out my role, is this necessary?

I believe that the correct way to approach this is to raise a grievance and to then resign, but should I mention to my employer that I am considering this in the hope that we can reach an agreement without the stress for both of us of trawling it through HR and to a tribunal?

What rights would I have assuming this all went ahead to request a reference?

Also, I believe that one of the outcomes of a successful unfair dismissal appeal is that the employer has to offer you your old job back? If this is true (and correct me if I am wrong), do I have to accept, as I really do not want to work here still?

I am keen to sort this in the most professional manner as possible, and do not really want to have to resign in such an economic climate, but feel no alternative option is available. Will all of this be taken into account in my grievance?

Thank you so much for your help.

bunny999

If I were you I'd start searching for another job. But you should hang on to the one you've got until you find a new one. An employer doesn't have to give you a reference. You probably do have a case for constructive dismissal. However, pursuing such a case can take a considerable length of time. Also being in dispute with a previous employer is going to make any other employer wary of employing you.

altyfc

From what I can see, you haven't been dismissed so I don't see grounds (as yet) for unfair dismissal. I would also hold off from resigning until you know exactly where you stand. Have you tried speaking to your employers directly? What is your current role?

darren.reading

Hi

Correct, I haven't been dismissed.

I also at this present time consider it unlikely that I will be dismissed.

However, the fact that I have been replaced without any prior discussion with my employer makes me feel like I cannot work here any longer, and that this change in role will constitute constructive dismissal if I resign.

I do not in any instance want my employer to think that I have accepted these changes that they are imposing on my, and therefore feel that my only choice would be to resign and start an unfair constructive dismissal case.

If I was successful in proving that I was constructively dismissed, my employer would have to cover any loss of earnings that I suffer.

Do people think that I have a strong case for this?

Thanks for your help.

viktory

darren.reading wrote: »

If I was successful in proving that I was constructively dismissed, my employer would have to cover any loss of earnings that I suffer.

But what will you live on in the meantime? If you resign from your post, any claim for benefit you make will be subject to santions and as someone has already pointed out it can take ages for this sort of case to reach a conclusion. Plus, other employers will be wary of employing you.

Are you absolutely sure that this is the course of action you wish to take? Is there no one higher than your boss you can discuss this with? Are you a member of a Union? Have you sought independant legal advice?

Sazzyukrafc

So, the new person will be doing the bits you couldn't do, as well as what you will carry on doing?

You don't know what has been discussed with the new person, the things you're still going to be doing might just be on there, so that they will assist with some of your jobs during busy times.

Sazzyukrafc

Also, your employers can hire extra people with the same job as you, it's just expansion. Your only chance is if they get rid of your for not doing your job and you can provide proof you have.

darren.reading

There isn't anything that I couldn't do ... as far as I am concerned, I could and did them well, I never had any feedback to the contrary.

My employer is by no means expanding. They are cost cutting, and it is very apparent to me that this is the case, working in the finance department.

Effectively, I am having a change in my career imposed on me by my current employer in the one instance (forcing me to specialise when I am not prepared to if I stay) and they have already replaced me in the other instance.

I personally cannot see how and why this should be tolerated and how anything but a constructive dismissal case would arise should I resign.

I have savings on which I can live.

Emmzi

I think you need to have a clear idea of what your duties will be when new person starts.

How similar is it to your current role? If it's more than 60/70% the same, I'd say you def. don't have a case.

Anything about employers future plans is conjecture at this stage, so there is no case to answer.

Unfair dismissal and constructive dismissal are legally 2 different things. I'd also get clear on what each means before wading in to your employer asking about it....

darren.reading

Surely my case will be viewed as constructive dismissal because my employer has recruited someone to do 100% of my role. Why would I want to stay after this? I can see no other option other than having to get a new job, and so therefore it is constructive isn't it?

The basis for the change in roles is performance, according to my employer, and they have not followed any procedure for discussing this with me ... I have not been informed of their thoughts, I have not been offered any training, nor an opportunity to learn and improve from this training.

My case surely therefore could be viewed as both constructive AND unfair, could it not?

The role that I was first told that I would continue in, I would say was 70 - 80% similar to my last role.

But that 20 - 30% would become 100%, and I do not want ot do that, how can my employer make me? It doesn't form the basis of my employment contract?

And the way it was left on our last discussion, I have to let my manager know if I accept the changes. And since I have found that he has totally replaced BOTH these roles?

To me, and I expect to anyone, this would make you feel that your employer does not want you there anymore. How can this be anything but constructive dismissal? And unfair because no procedures have been followed?

Many thanks for your help.

Emmzi

it's not unfair cos they haven't dismissed you, so that law doesn't apply.

it might be constructive if they are asking you to do things you aren't capable of, are effectively downgrading you, etc.

but just because you don't like the work, it doesnt make it unfair. your cintract is broadly that you agree to work, they agree to pay you - changes in nature of work are not automatically illegal, or we'd all be working to the letter of job descriptions and never get a thing done when times change!

you do sound unhappy though. I'd try and suggest something constructive to your employer rather than complain a lot about it - give them solutions, not problems, and be flexible. that also looks better at tribunal, especially if you document it.