Constructive dismissal return from maternity

[Elleroo]

Re: Constructive dismissal return from maternity

My formal request was the email I sent her.

I met my manager today and was told the office needed someone there 5 days a week or the performance could be affected. No right to appeal. I have had conversations today and was told either I go back to my old job same as before or work 4 days at somewhere I can't get to.

[teaboy2]

Re: Constructive dismissal return from maternity

No right to appeal eh - Well then thats a breach of section 80G of the employment rights act 1996

(2)Regulations under subsection (1)(a) shall include—

(a)provision for the holding of a meeting between the employer and the employee to discuss an application under section 80F within twenty eight days after the date the application is made;

(b)provision for the giving by the employer to the employee of notice of his decision on the application within fourteen days after the date of the meeting under paragraph (a);

(c)provision for notice under paragraph (b) of a decision to refuse the application to state the grounds for the decision;

(d)provision for the employee to have a right, if he is dissatisfied with the employer’s decision, to appeal against it within fourteen days after the date on which notice under paragraph (b) is given;

(e)provision about the procedure for exercising the right of appeal under paragraph (d), including provision requiring the employee to set out the grounds of appeal;

(f)provision for notice under paragraph (b) to include such information as the regulations may specify relating to the right of appeal under paragraph (d);

(g)provision for the holding, within fourteen days after the date on which notice of appeal is given by the employee, of a meeting between the employer and the employee to discuss the appeal;

(h)provision for the employer to give the employee notice of his decision on any appeal within fourteen days after the date of the meeting under paragraph (g);

(i)provision for notice under paragraph (h) of a decision to dismiss an appeal to state the grounds for the decision;

(j)provision for a statement under paragraph (c) or (i) to contain a sufficient explanation of the grounds for the decision;

(k)provision for the employee to have a right to be accompanied at meetings under paragraph (a) or (g) by a person of such description as the regulations may specify;

(l)provision for postponement in relation to any meeting under paragraph (a) or (g) which a companion under paragraph (k) is not available to attend;

(m)provision in relation to companions under paragraph (k) corresponding to section 10(6) and (7) of the Employment Relations Act 1999 (c. 26)(right to paid time off to act as companion, etc.);

(n)provision, in relation to the rights under paragraphs (k) and (l), for the application (with or without modification) of sections 11 to 13 of the Employment Relations Act 1999 (provisions ancillary to right to be accompanied under section 10 of that Act).


Read all of the above sections and tell me if they failed in any of the ones i have not highlighted, section I applies to right to be accompanied in both the original meeting regarding your request and your appeal meeting! From what you have said regarding no right of appeal, i'd say they are in clear breach of section 80G which gives you grounds to raise a claim at tribunal against them under section 80F employment rights act 1996 - NOTE: you do not have to have been dismissed to bring a claim when enforcing your statutory rights i.e. you have the right to the employer complying with their obligations under section 80G above!

[stevemLS]

Re: Constructive dismissal return from maternity

I am not sure what would be achieved by a tribunal claim - at best a nominal sum in compensation and the employer told to consider the request properly (with the distinct possibility that they would arrive at the same conclusion - at worst an irretrievable breakdown in the employer/employee relationship?

Whilst this may be a ground for bringing a claim, as I understood it, failure to follow ACAS codes does not it self amount to a cause of action before an ET?

[bluebottle]

Re: Constructive dismissal return from maternity

Correct me if I'm wrong, TB, but does not failure on the part of the employer to comply with the Employment Rights Act 1996 mean automatic unfair dismissal?

[teaboy2]

Re: Constructive dismissal return from maternity

I am not sure what would be achieved by a tribunal claim - at best a nominal sum in compensation and the employer told to consider the request properly (with the distinct possibility that they would arrive at the same conclusion - at worst an irretrievable breakdown in the employer/employee relationship?

Whilst this may be a ground for bringing a claim, as I understood it, failure to follow ACAS codes does not it self amount to a cause of action before an ET?

The ACAS code is based on the what the employer is required to do i.e. under section 80G so whilst not following the code may not directly amount to grounds for a tribunal claim, failure to comply with any part of the code that is also a requirement on the employer under section 80g does.

I agree, its too early for tribunal, now was a suggesting she start a claim, merely pointing out that she does have grounds to make one. Though the correct action now would be to establish exactly what breaches of section 80G, if anymore, the employer has committed in regards to handling the OP's request for fexible working hours, and then putting together a grievance letter. ACAS can be contact now, or at a later stage in the grievance process, though since employees are not required to use ACAS for early conciliation process, i usually advise people to contact ACAS when issuing a grievance to give plenty of time to get facts correct and build a case etc, should conciliation fail.

As for break down in relation, well the employer would be advised to not treat the OP less favorably as a result of grievance of tribunal action, as doing so is also grounds for tribunal action as its deemed victimization. But i doubt it will come to that, once the employer receives the grievance letter, as they will realise they were in the wrong, and likely then grant her request for flexible hours!

[Elleroo]

Re: Constructive dismissal return from maternity

I saw this coming to be honest and that's why I looked for another job in case this happened. I'm not going to bother with tribunals as like you said it's unlikely it will be proven.

just wondering whether to ask/push for my maternity return to work payment. The deal is when I returned to work for one month they were to give me 10% back of my monthly salary for 6 months (worth about £800 after tax?)

[teaboy2]

Re: Constructive dismissal return from maternity

Correct me if I'm wrong, TB, but does not failure on the part of the employer to comply with the Employment Rights Act 1996 mean automatic unfair dismissal?

Yes it does, but not in all cases. Though a Flexible working hour request case is one that would be automatic unfair dismissal. Though the op hasn't been dismissed yet, and i doubt she will be either, so its not relevant as yet. - http://www.legalbeagles.info/forums/...=tribunal+fees

There is a list here of what amounts to automatic dismissal, its not necessary a full complete list, but covers the majority of things that amount to automatic unfair dismissal

[teaboy2]

Re: Constructive dismissal return from maternity

I saw this coming to be honest and that's why I looked for another job in case this happened. I'm not going to bother with tribunals as like you said it's unlikely it will be proven.

just wondering whether to ask/push for my maternity return to work payment. The deal is when I returned to work for one month they were to give me 10% back of my monthly salary for 6 months (worth about £800 after tax?)

No ones suggesting taking tribunal action par se (i only refer to it, to inform you you'd be entitled to do so), as your best course at the moment is issuing a grievance, as your likely to get your flexible hours once the employer is made aware they are in breach of section 80g in respect of your request. You'd win hands down at tribunal for their breach of section 80G, the employer will know that too hence why they are likely to grant you your flexible hours when you issue your grievance. Its only constructive dismissal you'd struggle with and action under section 80G is not a constructive dismissal claim, but a claim to enforce your statutory rights which your employer has breached.

[Elleroo]

Re: Constructive dismissal return from maternity

After much discussion I have decided to take the other job, yes I have to work 5 days but it is more money. I'm just annoyed at my current employer but I am putting in my resignation letter that I felt that I've been left with no other option but to leave. Thanks for all of your posts.

[teaboy2]

Re: Constructive dismissal return from maternity

After much discussion I have decided to take the other job, yes I have to work 5 days but it is more money. I'm just annoyed at my current employer but I am putting in my resignation letter that I felt that I've been left with no other option but to leave. Thanks for all of your posts.

No problem - As for the 10% of last 6 months bonus thing. You could always ask for it, but your not forced to get it since you have not worked the month to qualify for it. Plus if its more money at the other job, i'd have left regardless and taken up the new job. To be honest they may even grant you fexible hours upon your resignation if you, as per you plan too, make clear their refusal to grant flexible hours was your sole reason for resigning, but thats a big if!

[stevemLS]

Re: Constructive dismissal return from maternity

Very best of luck Elleroo