Is this stalling tactics?

sacha28

A little background - A friend was on sick leave when she was informed of an investigation into 'fraudulent' activity. She was not suspended and she was informed in November last year. Actual investigators contacted friend in January and she had a very uncomfortable meeting with 2 investigators where, she believed, she had cleared up any questions regarding her conduct. This began over her manager having no understanding of the maternity policy and KIT days and seems to have snowballed into now looking at as long ago as 2010. Friend was told she would hear a conclusion in 4 weeks.....heard nothing and felt no alternative but to leave (her position had already been filled by another team member) so left in April. Last week she was summonsed again for further investigation questions.....a bit laughable, the investigators (different people this time) stated there were several days where friend had claimed to be working but her team 100% remembers that she wasn't yet her handwriting was over the work sheets that they provided as evidence. Investigators admit that they recognise it as friends writing and are rather embarrassed. Following that they called the meeting to a close and say that she will hear 'in a few weeks' what they have decided as the next step.

Does this sound ok as procedure? My friend is as straight as they come so this has devastated her and has, effectively, been forced out of a job that she was in for over 10 years. She has spoken to a solicitor who says she has grounds for constructive dismissal (there is far more to this than I have written but 1) it would take until the new year to read it and 2) I don't want to reveal too much and run the risk of identifying her) but she has only 3 months from her leaving date to lodge a complaint......she feels they are stalling on purpose and trying to dig for dirt from many years back as the original accusation has been proven to be either malicious or very poor management (seriously, who doesn't familiarise themselves with a policy before claiming their employee is acting fraudulantly?!).

Can a constructive dismissal claim be lodge even though the investigation is still ongoing?

agrinnall

Everything that has happened after she left is irrelevant to a potential constructive dismissal claim so forget about that. And I think deciding to leave when she did without making any effort to establish the outcome of the investigation would count against her if she did make a claim.

sangie595

agrinnall wrote: »

Everything that has happened after she left is irrelevant to a potential constructive dismissal claim so forget about that. And I think deciding to leave when she did without making any effort to establish the outcome of the investigation would count against her if she did make a claim.

I agree entirely. I would love to know where people keep finding these lousy solicitors who advise them they have a constructive dismissal claim when they do not. If your friend is paying for this advice, then get opinions from ones who don't charge. And if she isn't, be very careful what she signs.

A fundamental principle of constructive dismissal is that wherever it is possible, you must exhaust the employers existing procedures. She not only didn't, but honestly, I cannot see why she had "no other alternative" than to resign whilst still under investigation, and having not considered a grievance route (the normal requirement for complaints). She should have waited for an outcome of the investigation. You perhaps think employers should do better but what about employees just up and resigning without having a reason - being under investigation for an allegation, however that allegation arose, is not cause to resign. It is cause to sit it oit and wait to be cleared. Quite apart from anything else, she may have seriously damaged her reference of that states that she resigned whilst under investigation - the truth, - something which most employers take to be a confession of guilt!

If she has already left, then all the employer can now do, if they believe fraud had been committed, is refer it to the police. She is no longer in their employment and not obliged to attend anything.

I'm surprised that her solicitor didn't tell her that there is no need to wait to lodge her claim. Advise her that if the employer makes an early attempt to pay her off, she should seriously consider taking it. On the basis of the reason stated here for resigning, it may be the only one she will get. I would expect it to fail to even get to a tribunal, and to be in a "no prospect of success" situation. No matter how much more there may be to the story, there is nothing at all here that says constructive dismissal.

sacha28

Thank you for the insight.

A grievance was raised in March of this year, 3 months after the meeting with investigators. The grievance was, in the most part, ignored by the recipient. An acknowledgment of reciept was sent however that is all she has heard.

Unfortunately my friend's position was made untenable. She did not feel she could return and manage the team when they had very little respect for her (as I said, I have only skirted around what's actually happened there's far more to it) plus her management position had already been filled by her 'under study' (sorry, I don't know how else to put it) which she found out about through Facebook of all things meaning she didn't really have a job to go back to, in her eyes.

Thank you for your input, however difficult it may be for her to hear.

sangie595

sacha28 wrote: »

Thank you for the insight.

A grievance was raised in March of this year, 3 months after the meeting with investigators. The grievance was, in the most part, ignored by the recipient. An acknowledgment of reciept was sent however that is all she has heard. And, unfortunately, that would be fine. The grievance related to an ongoing investigation. The employer was entitled to consider it in that context and put it on hold until there was an outcome. Plus, had she felt this inappropriate, she needed too escalate the grievance - that is an expectation of any claim for constructive dismissal.

Unfortunately my friend's position was made untenable. She did not feel she could return and manage the team when they had very little respect for her But that is a personal opinion and in no way constitutes a fundamental breach. That is not an untenable position. That is one she doesn't like. The two things are different.(as I said, I have only skirted around what's actually happened there's far more to it) There's always is. But the requirements of constructive dismissal are very clear and very rigid. "More to it" doesn't add fuel, it adds irrelevance. plus her management position had already been filled by her 'under study' (sorry, I don't know how else to put it) which she found out about through Facebook of all things meaning she didn't really have a job to go back to, in her eyes. Again, personal opinion and assumption. She has no idea what she had to go back to, because she didn't give the employer a chance. And Facebook isn't an employers communication system - she had no idea what accuracy there was to what she read and aimed.

Thank you for your input, however difficult it may be for her to hear.

I am not seeing any cause to claim a fundamental breach substantial enough to justify a claim - when in doubt you always let the employer dismiss, not jump the gun. The evidential requirement shifts from employer to employer in constructive dismissal claims, the reason why they almost always fail. You need to either show a very serious matter which has exhausted the full grievance process; or something so fundamental that there is no question, such as violence, or failure to pay - something that really goes to the heart of the contract. I'm sorry to be really hard about this, but "they investigated me, and besides which, I thought they'd given my job to someone else" is simply not going to cut it. She is going to have to prove that the employer left her absolutely no choice other than to resign. And they didn't - she still had a range of things which could have resolved this. To say nothing of the fact that the employer is entitled to investigate potential wrongdoing, and by resigning she had removed their ability to come to a conclusion - which means that entire issue is now irrelevant to her claim, in that the employer did nothing wrong, and now do not need to demonstrate that they had any reasonable belief. It was a very bad decision.

Can I ask, was her "legal advice" provided by someone on the end of a phone, offering free advice? Because few of those people are lawyers, they are recruiters. Sales people. I really am quite disturbed by how often we hear people on here say that they've been told they have a good case of constructive dismissal. The simple fact is that nobody has a good case of constructive dismissal, and that is why they are nigh on impossible to win. In reality, an employer needs to be beyond unreasonable, they need to be wholly stupid, to hand people a claim of this sort. I have seen one successful claim in 30 years union work.

M'aiq_the_Liar

I must ponder this dilemma for a few days before giving sage advice.