Claiming constructive dismissal

Crazy_Jamie

SkimmySim wrote: »

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??

You see, this is why it is difficult to make a reliable assessment of cases that are being communicated through forums like this. Your previous posts made it sound like the final warning came off the back of the original warning but with no further misconduct. This post makes it sound like there were further allegations of misconduct, it's just that insufficient information has been provided about them. There is a big difference legally between those two situations. The latter may still be a fundamental breach, but it's important to highlight that the specifics of any given situation are very important when considering the strength of a constructive dismissal case. Your cousin really needs to seek advice from someone who can properly consider the circumstances in full.

SkimmySim

Crazy_Jamie wrote: »

You see, this is why it is difficult to make a reliable assessment of cases that are being communicated through forums like this. Your previous posts made it sound like the final warning came off the back of the original warning but with no further misconduct. This post makes it sound like there were further allegations of misconduct, it's just that insufficient information has been provided about them. There is a big difference legally between those two situations. The latter may still be a fundamental breach, but it's important to highlight that the specifics of any given situation are very important when considering the strength of a constructive dismissal case. Your cousin really needs to seek advice from someone who can properly consider the circumstances in full.

Thank you!!

They are using the previous warnings and are claiming that there has been no improvement when there has been thats why she's asking for proof!! Its easy for someone to write an email complaining but the cleaning company aren't showing any staff what/where the problems are just always saying that the "customer" is complaining.

steampowered

I'm afraid I cannot see how this could be constructive dismissal.

As CrazyJamie pointed out, constructive dismissal requires a fundamental breach of the employment contract by the employer.

I do not think that merely issuing a warning could be viewed as a fundamental breach of the employment contract, even if that warning was completely unjustified.

I think your friend would need something much more (such as significantly reduced hours or docked pay) to have any realistic possibility of a constructive dismissal claim.

If your friend believes redundancies are forthcoming, it may be better to search for another job. She could hang on and wait until the redundancies happen, but any redundancy payout is likely to be pretty small given that she only works part-time and only has 3 years' service.

Crazy_Jamie

steampowered wrote: »

I do not think that merely issuing a warning could be viewed as a fundamental breach of the employment contract, even if that warning was completely unjustified.

For what it's worth, I disagree. I think there are circumstances where issuing an unjustified warning could amount to a fundamental breach, particularly if the motivation is vindictive or malicious. However, I think we are in agreement that it looks like a bit of a stretch for there to be a valid constructive dismissal claim here.

That said, your cousin does currently have an ongoing grievance. There are two ways to establish a fundamental breach of contract. The first is for there to be a single act that is sufficiently serious that it is a fundamental breach in and of itself. The second is for there to be a series of more minor breaches which together constitute a fundamental breach (in which case there has to be a 'last straw', being a final act in the course of conduct). If your cousin has been given insufficient information about her final warning, has raised a grievance about that, and is still not provided with sufficient information, it is possible that the scenario could become one in which the employer has fundamentally breached her contract. However, the issue of whether or not they have is (as mentioned above) extremely fact sensitive, and (as also mentioned above) it is something that your cousin should seek more appropriate advice about.