Constructive dismissal?

G_M

Hope this is the appropriate forum. Any experts there?

Friend has worked for 8 years for a company. Hourly rate, 7 hours a day (well, nights).

Firm is in trouble and put everyone on short hours. She now has 3 hours per day (day now, lower rate), so clearly cannot manage on the pay.

There was a 'meeting' with some staff, during the day, but my friend didn't know till afterwards as she works nights. Boss told her 'We've all agreed to reduce the hours, yours are now 1.30 PM to 4.30 PM on the day rate."

Is this constructive dismissal, as she has no choice but to leave and get a new job? It's change to her terms of employment surely, and she had no consultation or choice. If so, how does she pursue it?

Thanks!

ceridwen

I would have thought it was.

I am surprised that the boss thinks he can away with a statement like "We've all agreed - so your hours get cut too". My understanding is that, where a Union is involved, you are at risk of the Union agreeing to something over your head that you personally don't agree with. However - in this case it doesnt sound like there IS a Union involved - its just other work colleagues (as individuals) have agreed. In that case - she cant be taken as having also agreed. With the way that the meeting didnt happen in her work hours and she wasnt even given notification of it (ie couldnt have attended if she wanted to) then what happened at the meeting was obviously "out of her control" - so how could he say others have agreed on her behalf?

I would say she needs to get a letter to her employer sharpish (copy kept of course) stating that she doesnt agree (because after having worked on"new" terms for a while, without having expressed any official disagreement, its taken that one HAS agreed).

Hopefully SarEl will be along soon to tell you the legal position on this.

But I would certainly say your friend needs to get that disagreement letter in right away to her employer.

NB: Another reason for keeping a copy of that letter is that she can produce it for the DWP - ie in case he sacks her for refusal to work shorter hours (which is something that might happen). She would need to have that letter available to produce to the DWP to prove that any sacking wasnt her fault - it had been brought about by her employer trying to unilaterally change a full-time job to a part-time one against her will (that would make it plain that she has done nothing wrong - just in case the DWP should say that she caused any dismissal to occur by doing something wrong herself). She would have the proof as to exactly why any dismissal had really happened.

ceridwen

Here - have this:

http://www.adviceguide.org.uk/index/life/employment/basic_rights_at_work.htm

getmore4less

can they reduce you hours in your contract?

If not reject it and they should pay you.

This layoff is less than 1/2 pay so redundancy kicks in

http://www.direct.gov.uk/en/Employment/Understandingyourworkstatus/Temporarylayoff/DG_10037790

123benji123

Hi G_M
You seem to know what you are talking about as you picked on constructive dismissal. I agree with you on this being the best way of approaching the tribunal if it happens to go that way.
Constructive dismissal is a form of dismissal. If your friend resigns from her job because of her employer’s behaviour, it may be considered to be constructive dismissal. She would need to show that:

1. Her employer has committed a serious breach of contract
2. She felt forced to leave because of that breach
3. She have not done anything to suggest that she had accepted their breach or a change in employment conditions

The reason for leaving her job must be serious - there must be a fundamental breach of her contract. Examples include:

• a serious breach of her contract (eg not paying her or suddenly demoting her for no reason)
• forcing her to accept unreasonable changes to her conditions of employment without her agreement (eg suddenly telling her to work in another town, or making her work night shifts when her contract is only for day work)
• bullying, harassment or violence against her by work colleagues
• making her work in dangerous conditions

The employer's breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken together.
Leaving her job should be the last resort. Firstly, tell her to speak to her manager and see if she can resolve the problem that way. If the problem is with her manager, she could talk to:

• their manager
• her company's HR (human resources) department
• an employee representative (eg a trade union official), if they have one

If speaking to her manager or someone else doesn’t work, tell her to try and sort out the problem with her employer through her company's standard grievance procedure. In most cases she will be required to have raised the issue through a grievance procedure before taking legal action.
Hope this little bit helps. Please let me know how she got on.

Thanks - Good Luck

G_M

Many thanks for the replies.

Yes, there is no union.

Yes, she wrote, stating that the new hours were unacceptable (due to mortgage blah blah) and that as no consultation, she did not agree. Boss wrote back, explaining the company's financial difficulties and confirming new hours (in writing!). She wrote again, saying that "As you have given me no choice I will come in and work the hours you've specified, but I repeat my non-acceptance and shall be taking legal advice on this change to my T&Cs"

Small company - no other manager, HR dept or rep.

My Q was therefor, what is the next step, but the links to CAB and the Gov website ar very helpful.

Many thanks!

jazzyman01

Unless specified in her contract then the absolute minimum notice they must give her to change her terms and conditions would be 8 weeks as that is the number of years she has been employed. They must, however, have made an attempt to discuss reasons for change and if she has not agreed then give notice to terminate her contract and reissue her with another specifying the new contractual hours. Hence the 8 weeks.

getmore4less

Does the contract allow for short working and layoff, if it does then the only option is to wait and go down the redundancy route.

If not then they have to pay the contracted hours as long as they are willing and able to work.

Slap a claim for ilegal deduction of wages if they don't pay up.