Final warning -- non agreement

[clash]

My partner had allegations brought against him for foul language / aggression on 2 accusations
one which he admitted to saying by arguing it was common place and not directed at manager as she stated.
The second when he was handed his suspension for first allegation by the same manager that raised allegation and her mate which she brought into the room put further allegations in that he swore several times and was very aggressive which is total fabrication

Now after a farce of disciplinary hearing which wouldn't listen to his arguments or take extra statements because they don't feel these are sufficient enough they have now sent a letter to say final outcome is a final written warning but he has to sign to say agreement of the allegations and say sorry to manager involved for his conduct

He believes this has all happened because he has been raising grievances with his employer about his work conditions which they ignore and thinks they are targeting him so he cant whistle-blow or leave under constructive dismissal.
He has already raised this point which basally fell on deaf ears

so now it a catch 22 situation he doesn't want to sign to say he agrees with outcome plus he cant return to work because is now very stressed and under the Dr so doesnt feel he can deal with an appeal also he has lost all trust with manager and feel he couldnt return under a final warning for her to accuse him at any point she feels and get him sacked

can he just leave and claim constructive dismissal ??
or is there something else he can do with out accepting the final warning but not appealing ??

Appreciate any advice, its a very stressful time for us both

[FlamingParrot]

Re: Final warning -- non agreement

First of all, how long has he been working there? Normally he'd need at least two years' continuous employment to bring a claim.

Claims based around constructive dismissal can be hard to win and have a low success rate. You may want to look here for more info: http://www.personneltoday.com/hr/the...smissal-claim/

What does the employee have to prove?

The employee has to show that they have resigned in response to a fundamental breach of contract by the employer. The Employment Rights Act 1996 essentially says that if the employee terminates their contract in circumstances in which they are entitled to do so without notice because of the employer’s conduct, that termination constitutes a dismissal.

Sometimes that conduct will be the breach of an express term of the contract of employment, such as the right to be paid a certain amount on a certain date. More commonly, it will be that the employer’s behaviour has breached the term of mutual trust and confidence that is implied into all contracts of employment. The term basically requires employers to refrain from conducting themselves in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Examples of such conduct may include isolating the employee, humiliating them in front of others and falsely accusing the employee of misconduct.

How easy is it to show constructive dismissal?

Constructive dismissal is far more difficult to prove than employees often think. First they must prove a fundamental (rather than minor) breach of contract by the employer.

The employee must also show that their decision to terminate their employment was in response to the breach and not, for example, because they had been offered a more attractive job. An employment tribunal will also need to satisfy itself that the employee did not delay too long in resigning. A tribunal will usually expect an employee to have tried to resolve the complaint through the grievance procedure before jumping ship.

You say he started grievances about his working conditions, any idea what they were?

[clash]

Re: Final warning -- non agreement

Thank you for replying there has been further development since posting this which Ill explain in-case it helps others in future.
He has been there over 3 years.
I spoke to ACAS they recommend trying to appeal within the working environment but as all trust and confidence has been broken including this now causing him health issues he feels he cant appeal within the company.
They suggested if he did resign to attach all his grievance issues within his resignation.

He decided to resign and did enclose his grievances the major been unfit and unsafe working environment which he has proof of and has tried to raise these informally before to which the company ignored him.

I think just been relieved from this situation has been the best outcome and he will decide over the following weeks if to discuss further with legal advice or not

[sean5302]

Re: Final warning -- non agreement

I endorse FlamingParrot's post.
At the end of the day, if all trust is lost in an employer, the right thing to do is to leave and go elsewhere.
Constructive dismissal is extremely hard to prove.
The company will have witnesses to testify about the aggression and suchlike. They will try to present it such that it seems they were generous to a fault.
All that is at stake really is a sum of money.
If he goes by resignation he will only receive payment for unused holiday entitlement. If he proves constructive dismissal he'll get money in lieu of notice and, possibly, a small sum for damages.
Is it worth the hassle?
Only you can answer that.

[clash]

Re: Final warning -- non agreement

Im not sure if I explained correctly but all he ever did was swear once, that is what he admitted and apologized for but as its commonplace he was bemused it was taken to disciplinary, (this was same day he tried putting in an official complaint against management after months of informal meetings due to health and safety ) that when he discovered they added extra allegations which were all fabricated but anyway .......
Acas did say constructive dismissal is hard to prove, once the manager read my partners grievance resignation he did ask if he wanted a meeting set up with head office but when he looked at the name of who would run it he decided against going as its yet another friend of the management and he feels its a waste of time.
This doesnt mean he cant still take it to an outside legal advice if he so wishes within 3 months but as Sean 5302 states, its if he thinks its worth the hassle !! The outcome maybe only small financial wise but I guess it would show his grievance was true and he was targeted in attempt to cover up the companies misgivings

[FlamingParrot]

Re: Final warning -- non agreement

He has three months to apply for early conciliation through ACAS, which is a prerequisite to submitting a claim to the employment tribunal. ACAS will issue a certificate with a number which has to be quoted on the claim if submitted. Early conciliation is free but the tribunal is not. He'll need to pay £250 for the submission and £950 if it goes all the way to a hearing, although he may be able to apply for fee remission in certain cases. If he doesn't qualify for fee remission, it will be more than just stress and hassle at stake.

There are some good sources of free legal advice out there so the three months could be used wisely before making a decision. :decision:

Constructive dismissal is a form of unfair dismissal where the employee has to resign. Last thing I heard, their success rate at the tribunal is just 3% however, a lot of cases do get settled out of court.

If he won he'd be looking at potentially two awards: one for wrongful dismissal which relates to the notice period as stated on his contract (normally a month or three months) and the unfair dismissal award which would be based on loss of earnings, capped at the current rate (around £460 per week if his salary was higher than that). The exact amount would depend on how long he is out of a job and how long the tribunal reckons he could be out of a job if he's still unemployed at the time of the award as well as his jobseeking efforts to find work. This can be a bit of a minefield.