Constructive dismissal - Please help.

[Bingbongsong]

I have an employee who has worked for me for nearly 3 years. I'll call her employee X. She is on a a 3 day contract, but has worked extra days during seasonal peaks and when we have had staff sickness/holidays etc. Employee X was very good and pleasant to start with, however over the last couple of years she has been a fairly unpleasant member of the team, and we have had complaints from both customers and staff members about her attitude. I should have not let her get passed the 2 year mark, and I've learned my lesson. She was given a final written warning back in Feb, for an outburst with a customer and then manager and then going AWOL.

Since then a full time member of staff left to work for her own family business, and I decided to take on two part time staff to replace her. In a small team this works much better for holidays and seasonal peaks. I took these on on alternate 3 day and 4 day week contracts. So week 1 employee A works 3 days and employee B work 4 days, then the following week employee A works 4 days and B works 3 days. Employee X did moan to other staff at the time, and make employee A and B feel awkward and unwelcome, by stating she should have been offered full time to start with. I explained that part time staff worked better for the business, and she was warned about her comments to the new starters.

When there is any over time, it is offered fairly, so if a an employee has a day off for an appointment, the extra day will first be offered to employee X, if she doesn't want the extra day, it will be offered to employee A, then B and so on. The next time an extra day or extra hours are available, they are offered to employee A first, then passed along as before.

Employee X has just handed her notice in, and has said it is because she needed more hours and money and, it annoyed her that we took on two new employees who do 4 days on alternate weeks, when she has been held to her 3 day contract.

I understand this is an error on my part, and I believe I may be open to a constructive dismissal claim. Is there any way I can mitigate this? In all honesty, employee X not a good employee, and that is why I didn't offer her extra days. She's upsets the other employees, we get complaints from customers, so why would I want to extend her contract to 4 days? I've sent her on customer service courses, I've worked with the manager to try and encourage her to be more of a team player, and now I have a gut feeling she'll head straight to ACAS.


Any advice of how I should move forward would be really appreciated.

[ostell]

You haven't breached her contract, why would she complain. She is already on a warning.

[KIP1]

Hi BBS
The grounds for constructive dismissal are quite specific, and I suspect this will not qualify. In a nutshell, she would have to resign and state at the point of resignation that she was resigning due to constructive dismissal (or very soon afterwards). It's a very difficult argument to run even for genuinely wronged employees, unfortunately.
She would have to claim and substantiate that the company's treatent of her has made it impossible (as opposed to just uncomfortable) to continue and that the employment relationship is irretrievable.
It sounds like you have acted in good faith and if you are sure you have not breached the employment contract and have awarded the warnings in line with the ACAS code of practice and kept accurate records, I don't think you have much to worry about from the point of constructive dismissal. However, as regards the advertising of the new position,, you may have some explaining to do if it can be credibly alleged that this employee was not offered the chance to apply or debarred from doing so, but this is beyond my knowledge.

[Bingbongsong]

Thank you for your sound advice, it's very much appreciated.