Is this constructive dismissal?

[stunner1901]

Hi and apologies if this is long winded but i really need help

I worked as a sub contract driver for a company for 3.5yrs until end August this year

I then went to work for the said company as a Transport Manager and was told my wages would reflect my position

Eventually, we discussed money and they offered me 25000pa subject to rises as and when new work came on board - i accepted under the promise of regular reviews. They claimed that although ideally they wanted 6pm-6am 5 nights there wasnt enough work from1-5am to warrant a full wage. I took this as i would only work until approx 1am when all work was completed

I also worked in the office at home doing routes , info sheets etc.

On monday 14/09 i had to get a relief driver to cover a 330 mile run in east anglia, which he did. At 8am on tuesday 15/09 i got a call to say "why didnt you do that run , i aint paying a driver for something you should have done"
obviously i said "so you want me to do 6 til finish and then go and do a potentially 8hr run coz that aint happening",her reply "yes and if you wont do it we have a problem"

I duly went on the sick with stress

The following week I had a meeting with them, and they decided that there wasnt a management position available anymore (not enough work to justify wages) so i would have to be "head " driver (which to them is a glorified do anything, go anywhere role) and they would only be able to pay me 22k - i never agreed and duly stayed on the sick

In spite of setting all the routes up, getting the operation running smoothly and everything else i did , they basically just wanted me to go back as a driver but expected me to still advise their son ,who was going to look after the computer side of my "old" job , if he had problems

Due to the wage/position cut, the fact that they wanted me to break GB driver regulations,endanger my life and others, and the feeling of being used, i handed my notice in and duly left

Is there a case for constructive dismissal? and if so, what should i do next?

Thanks in advance

[Guest]

Re: Is this constructive dismissal?

It may do and the fact that you quit, as odd as it sounds, actually goes in your favour. However, the correct title and the only one that will work in this instance is "constructive unfair dismissal." Being constructively dismissed only proves that you were dismissed, it does not automatically prove that the dismissal was unfair. You must go on to prove that the dismissal was also unfair. If this was due to a breach of contract, such as you have described, then this will be easy to demonstrate.

How long were you sick for, before you handed in your notice?

[stunner1901]

Re: Is this constructive dismissal?

Hi and thanks for the PM's

I was on the sick for 6weeks

regards

[Guest]

Re: Is this constructive dismissal?

There is no specific legislation governing "constructive dismissal" however there are cases decided by the courts and it is a common law right of the employee to repudiate the contract of service.

Where the employer’s conduct is such that it constitutes a significant or fundamental breach going to the root of a contract of employment and it shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, an employee is entitled to walk out on his employer and to treat himself as discharged from any further performance of his obligations under his contract of employment, on the ground that he has been “constructively dismissed.”

However, for a complaint of constructive dismissal to succeed, it is essential that you act promptly. It is fatal to a claim based on constructive dismissal if there is undue delay in responding to the changes that were imposed by the employer or generally, in reacting to the repudiatory conduct of the employer. Less than six weeks has been held to be unreasonable, as this is plenty of time in which to act.

[strangewayofsavin]

Re: Is this constructive dismissal?

there may be another soloution, being under a contract of service, usually means self employed for tax purposes, and you work as an employee, but under the forementioned contract.
If the contract is changed, without the option to confer or argue the contract, then depending on the implied or written terms, you may have a case under the rule of "position of control", if the new contract inposes restraints that the issuer has an overall control I.e you have to report personal mileage, the job in hand restricts your right to other employment, and they state what you earn and the hours you work, but you supply the vehicle, then this would put them in a poisition of control.
Not all workers are employees, and not all employees are workers as the law stands, but placing a certian amount of control over a contracter, makes a person a worker.
All workers are entitled to core employment rights, I would contact ACAS, I did in a similar situation, and won over £4,000, the contract issuer was Mr Murdock of the Sun news paper, just because its in the contract does not make it legal.
all the best Swos

[Celestine]

Re: Is this constructive dismissal?

"I worked as a sub contract driver for a company for 3.5yrs until end August this year

I then went to work for the said company as a Transport Manager and was told my wages would reflect my position"




Why did you leave your previous sub contract employer? Did they lose a tender for a new contract term?

Just wondering if there are any relevant TUPE issues. Probably not, but worth checking.

Transfers of Undertakings (TUPE) - BERR

[Tools]

Re: Is this constructive dismissal?

Just adding to this, what class of vehicle were you driving and under what regulations were you restricted, i.e tachograph regs and or working time directive/ periods of availability?