Claiming constructive dismissal

getmore4less

this is how it reads to me

An employee of a a cleaning company is asigned a cleaning job as some place.

the place they clean are complaining to the cleaning company.

cleaning company invoke a disciplinary/correction process.

written warning and now a final written waning.

could you resign and claim constructive dismissal.

No chance.

going to be a tough one for an unfair dismissal as an ET won't want to get involved in the complaints(even if fabricated) just if the process of the disciplinary, that needs going through a formal grievance process first.


issue will be internal and if the company are still not happy with the cleaning is there anything that can be done to fix that this time.

Crazy_Jamie

From the outset it is important to note that in the first instance your cousin should follow the appeal and grievances processes through to their conclusions. Whilst you do not need to do either in order to claim constructive dismissal, the Tribunal has the discretion to reduce any compensation awarded by up to 25% if the proper procedures haven't been followed before resigning and making a claim. But quite apart from the legal consequences, for all your cousin knows those processes may be concluded in her favour, which is the quickest way to deal with the issue.

On the assumption that her appeal and grievance are not upheld, you need in the first instance to consider what the employer has done wrong from a legal perspective. The focus in this respect is on the final warning; your cousin doesn't seem to take issue with the first one. From your original post it certainly seems that the process followed the second time around was somewhat different, and on the face of it there may well be a case to suggest that the procedure was insufficient and/or unreasonable. However, without more information it is difficult to establish whether or not the final warning itself was warranted or not. Your cousin will (or should) have letters confirming the warnings and the reasons for them, and should also be able to obtain minutes of the disciplinary hearings (if they haven't already been provided for the appeal). Those will give the best indication as to what the second warning is for, and whether it is warranted.

Once the breaches have been established it is then a matter of deciding whether or not those breaches are sufficiently serious so as to amount to a fundamental breach of contract, which is what is required to succeed in a constructive dismissal. That is a high threshold to meet. Giving a spurious warning could certainly be sufficient to amount to a fundamental breach, but there is a big difference between a warning that is spurious and one that is debatable or even unreasonable. It is therefore important that your cousin assesses the situation as objectively as she can. Even if she does believe that there has been a fundamental breach, it is also important to note that the burden is on her to prove that, and a bare assertion or suspicion that something is spurious won't be enough.

On the basis of what you've said there is a hint that there may have been a fundamental breach here, but it really is nothing more than that, and a far more thorough assessment of the evidence will be needed before your cousin should consider resigning. The majority of constructive dismissal claims fail precisely because employees don't appreciate just how high the threshold is for a fundamental breach, and also don't appreciate the burden of having to prove their claim. Unfair dismissal cases (which come into play when an employee has been dismissed) are easier to win by comparison because the employer has to show a fair reason for the dismissal, and dismissals can be rendered unfair by far less significant actions than are required to win a constructive dismissal case. Hence why the general advice is to wait to be dismissed rather than to resign.

In this case your cousin is on a final written warning, and relatively speaking therefore it may not take a lot for the employer to make a move to dismiss her if that is the intention. But even in that situation her legal position may be stronger than if she resigns now. Spurious or unwarranted previous warnings can come in to play in an unfair dismissal case where the employer relies on previous warnings as well as the conduct that resulted in the dismissal, so your cousin wouldn't necessarily lose the ability to argue about this most recent warning even if she was dismissed for something else.

Ultimately though, we lack the information that is needed here to give much more than generic guidance. Your cousin needs to think carefully about her next move, and if she is to resign with the intention of claiming constructive dismissal, she needs to make sure that she can prove the things that she 'knows', and that she can prove them to the extent that they amount to a fundamental breach of contract.

SkimmySim

Sorry for the delay in my responses!! And again thank you all who have replied and helped!!

My cousin went ahead and attempted to join a union but has not been able to as they don't cover her sector (cleaner) so is at a loss as to what to do now! She has sent in her appeal and grievance and has been told they (her manager) wants a meeting with her! She's nervous about this.

In terms of the breech of contract, she said the fact that they sent a msg saying lets meet for a quick chat, and then wrote her and said that infact it was a disciplinary hearing and your on your final warning without given her the option to be accompanied by a TU rep or collegue does that not show a breech of contract??

Her first warning was nothing serious just standards of cleaning with no proof (as in pictures or supervisor having to constantly show her she's never been shown where or what these issues are etc) of it going down other than complaints from one person all the time, so the fact it got to final warning doesn't seem justified. This final warning was off the back off the previous warning.

She nor I know what steps to take next!

JJG

SkimmySim wrote: »

My cousin went ahead and attempted to join a union but has not been able to as they don't cover her sector (cleaner) so is at a loss as to what to do now!

Unison and Unite both show up in a search for a union by job role "Cleaner". Both would accept her.

SkimmySim

They both said no unfortunately

SkimmySim

Sorry it was unison and a different one... she's waiting to hear from unite

annandale

The main thing is that she doesn't go to the next meeting unaccompanied

annandale

CAIWU is a union for cleaners. Google search brought them up

Crazy_Jamie

SkimmySim wrote: »

In terms of the breech of contract, she said the fact that they sent a msg saying lets meet for a quick chat, and then wrote her and said that infact it was a disciplinary hearing and your on your final warning without given her the option to be accompanied by a TU rep or collegue does that not show a breech of contract??

On the basis of what you've said, yes it may well be. Probably not a fundamental breach, though, and that's what you need to show to succeed in a constructive dismissal claim. Far more likely to be a breach of contract is this notion of a first warning being given, and then that warning being followed up with a final warning even though there was no other misconduct. I have no idea how accurate your recounting is in that regard, and there may well be a misunderstanding in that respect, but if that is what has happened I struggle to see how the employer could justify it. This is still all very much dependent on details and evidence that we don't have, though.

SkimmySim

Crazy_Jamie wrote: »

On the basis of what you've said, yes it may well be. Probably not a fundamental breach, though, and that's what you need to show to succeed in a constructive dismissal claim. Far more likely to be a breach of contract is this notion of a first warning being given, and then that warning being followed up with a final warning even though there was no other misconduct. I have no idea how accurate your recounting is in that regard, and there may well be a misunderstanding in that respect, but if that is what has happened I struggle to see how the employer could justify it. This is still all very much dependent on details and evidence that we don't have, though.

The final warning was given within 5 weeks of the first, no supervisor is or has ever been on site for conversations about these issues to allow them to be addressed. She too has no evidence of where these issues lie so is oblivious to what the actual problems are. She has even asked her manager to provide photos so she can see what the complaints are relating too but still nothing. How can she improve issues she has no idea exist??