Potential Constructive Dismissal Claim

[Mazza951]

Hi all

Following a promotion a few years ago the administration manager in the office took an extreme dislike to my position and she bullied me from the inception of my promotion to the point where I was signed off with work related stress. Part of my job description included liaising with administration manager and looking after her department when she was absent. She refused to liaise with me and made it impossible for me to carry out my role as I should. I raised the issues with management on numerous occasions and in appraisals. However, management failed to do anything about it and did not even address the issue at all.

I love my job and did my best to carry it out to the best of my ability but the admin manager refused to communicate with me at all, to the extent she would not answer emails and ignored me. She would refer directly to staff I line managed if she needed assistance from them, without following procedure and speaking with me first. She took every opportunity to undermine me. Finally, I felt I had no option but to raise a formal grievance. The grievance was carried out but not viewed objectively nor investigated thoroughly and the company ruled that my complaint was not upheld.

I then appealed. However, shortly after the appeal meeting started the chairman adjourned the hearing and said they did wanted to put a Without Prejudice offer to me in order that I exited the company. I was told that if I chose not to accept it the hearing would resume. I was sent a rubbish offer in the post. It was an insult and didn't even amount to statutory redundancy. I rejected this and requested that the appeal hearing went ahead. The company refused this and said they would read my submitted documentation and make their decision. The company ruled that their original decision was correct.

I had by this point been signed off work. I threatened to resign and bring forth a claim for constructive dismissal. The company finally offered an appointment with Occupational Health. I advised I saw no point in pursuing this avenue until I had been given the chance to present my appeal. The company agreed this, and it took place last month. I felt it was merely a formality and I was not surprised when the decision remained unchanged.

I now feel I have no choice but to resign and file for constructive dismissal.

Any advice regarding this would be gratefully received. I believe the company has had ample time to sort this matter from the outset when I first raised it, and plenty of opportunities to address it when I raised the matter subsequently on numerous occasions. I have a wealth of evidence which has not been investigated. I believe the company is protecting the admin manager as there has been another unsuccessful grievance against her (a colleague decided to leave the company as a result) and separate colleague was talked out of making a formal complaint.

I now need to write my resignation letter. I will obviously raise why I feel I have no choice but to resign. Should I mention that I am now going to file for constructive dismissal? Also, should I consider ACAS pre claim conciliation?

Thanks guys

[Sapphire]

Re: Potential Constructive Dismissal Claim

I'm no expert on this but I am an employer, please, please think twice about resigning, hold on until one of the others on here pops along and gives you expert advice, I think you'd be better off standing your ground.
As my old dear departed dad used to say 'any fool can resign, it takes a brave person to stay and fight'.

[Mazza951]

Re: Potential Constructive Dismissal Claim

Thank you for responding to my query.

I do see your point, but I really don't see that I have any choice. I have either got to return to my job and accept their terms, which means I will be belittled and undermined even more. Surely, for the company not to deal with my grievance objectively, will have given the administration manager the green light to continue. I now have no further right of appeal. I just can't fight any more as I have no opportunity to do so, so I feel all I can do is vote with my feet.

[Eloise01]

Re: Potential Constructive Dismissal Claim

Sapphy's dad nailed it 110%. I fear you won't like this advice, so I am going to start off with the even worse news... less than 3% of constructive dismissal claims win. Those are the worst statistics of any claim group. It takes an exceptional claim to win a tribunal - nothing you have said here is exceptional. You might get a better settlement if you take this route - but I am warning you up front that you also might not. And the odds on winning such a claim at tribunal are not good at all.

Hi all

Following a promotion a few years ago the administration manager in the office took an extreme dislike to my position and she bullied me from the inception of my promotion to the point where I was signed off with work related stress. There is no such diagnosis. You may have been sufering from stress, yes. But the cause of that stress is an opinion, and a third party opinion at that. The GP based their opinion on what you told them. They have no direct evidence that what you told them is true. They therefore cannot simply ascribe a cause, never mind a liability. This is not your fault - many GP's are sloppy like this, and it causes untold difficulties. Part of my job description included liaising with administration manager and looking after her department when she was absent. She refused to liaise with me and made it impossible for me to carry out my role as I should. I raised the issues with management on numerous occasions and in appraisals. However, management failed to do anything about it and did not even address the issue at all. In otrher words - they did not think there was a problem to deal with. If it was causing them problems, they would have done something about it.

I love my job and did my best to carry it out to the best of my ability but the admin manager refused to communicate with me at all, to the extent she would not answer emails and ignored me. She would refer directly to staff I line managed if she needed assistance from them, without following procedure and speaking with me first. She took every opportunity to undermine me. Finally, I felt I had no option but to raise a formal grievance. The grievance was carried out but not viewed objectively nor investigated thoroughly and the company ruled that my complaint was not upheld. In your opinion, it was not viewed objectively or investigated thoroughly. There are other opinions. The point is, your complaint was not upheld. In layman's terms this is called "the writing on the wall" - your employer either didn't agree with you that there was a problem, or they thought you were the problem! Either way, this is irrelevant - the employer did not uphold your grievance, and it is their right not to do so.

I then appealed. However, shortly after the appeal meeting started the chairman adjourned the hearing and said they did wanted to put a Without Prejudice offer to me in order that I exited the company. Refer to the "writing on the wall" above - this was the heavy hint that the employer considers you the problem. I was told that if I chose not to accept it the hearing would resume. I was sent a rubbish offer in the post. It was an insult and didn't even amount to statutory redundancy. I rejected this and requested that the appeal hearing went ahead. This was a poor strategy - you should have countered their offer with your own ridiculous amount! Have you never haggled? That is what these offers are about - haggling. The company refused this and said they would read my submitted documentation and make their decision. The company ruled that their original decision was correct. And they can do this. An appeal is against the original decision. They had all the information, so there was no need to have a further hearing. They determined their response based on the original evidence.

I had by this point been signed off work. I threatened to resign and bring forth a claim for constructive dismissal. The company finally offered an appointment with Occupational Health. I advised I saw no point in pursuing this avenue until I had been given the chance to present my appeal. The company agreed this, and it took place last month. I felt it was merely a formality and I was not surprised when the decision remained unchanged. Oh dear - that was a tactical error. You never refuse an OH appointment. That is now down on record as you unreasonably refusing employer support when you are claiming that your stress is work related!

I now feel I have no choice but to resign and file for constructive dismissal. Why? The employer doesn't agree with you. That isn't a reason to resign. The employer not agreeing with you is not a repudiatory breach of contract.

Any advice regarding this would be gratefully received. I believe the company has had ample time to sort this matter from the outset when I first raised it, and plenty of opportunities to address it when I raised the matter subsequently on numerous occasions. I have a wealth of evidence which has not been investigated. I believe the company is protecting the admin manager as there has been another unsuccessful grievance against her (a colleague decided to leave the company as a result) and separate colleague was talked out of making a formal complaint. So what? A tribunal will not consider any of this. You cannot introduce other peoples cases!

I now need to write my resignation letter. I will obviously raise why I feel I have no choice but to resign. Should I mention that I am now going to file for constructive dismissal? Also, should I consider ACAS pre claim conciliation?

Thanks guys

By now I am sure you think that I am on the other side. But I am not. I am telling it to you like the law will. Resign and make a claim and I will be a pussycat compared to what you will go through. So you have to be damned certain of your evidence, damned certain it says what you think it does (and in my experience, it often doesn't!), and even then, your chances are poor. So are you willing to risk everything on such a claim? Because that is the decision you are making. It's your job. It's your reference. You may not win. You probably won't win. And nobody wins as muh as they think they will win at a tribunal because they are misled by headlines - the average award is around Ł6-7k!

So stop now. Think about this. What do you think you could gain here? What is it you think you may gain here? And how realistic is it?

It is very poor judgement to resign in these circumstances if you haven't taken detailed legal advice on your chances. And bearing in mind that your chances are slim anyway - a great case of constructive unfair dismissal has a 3% chance of winning!

There are other options. Stick your head down, ignore everything and find another job. If you can't do that, then fine - go for it. But be clear about what the risk to you is. Do not assume you will win. Do not assume the employer will settle (although they probably will, I cannot guarantee that). Do not think for one minute that they will settle for whatever figure you have in your head!

[Mazza951]

Re: Potential Constructive Dismissal Claim

Hi

Thanks, I appreciate you taking the time to respond to me so fully.

I think I just need to clarify a few points:

Regarding the work related stress. I didn't tell my GP the situation as such. I took ill with Pneumonia (I never get ill and have not had time off work for three years) and it took me six weeks to get over. Following this I was left with severe fatigue and pains in my joints. My GP then fell I was suffering from symptoms of stress coming out in my physical body. I do get your point re the diagnosis, but who is to say also that it was not caused by the work situation?

Work were very aware there were problems. However, it seems they were unable to know quite HOW to address the issue. The administration manager kept insisting that she was my line manager when my own line manager was out of the office, yet I was instructed to deputise in his absence. When I raised this, they would not clarify either way. In other words, they had no backbone and didn't even tell me that it was ME that was in the wrong. This simple issue could have been addressed, but they didn't face it. This is a company who is very unprofessional and management prefer to bury their heads in the sand rather than face up to matters. As a result many good members of staff have left the company.

I had provided hard evidence of the administration manager refusing to liaise with me. Including examples of where PRIOR to my promotion she was emailing me to ask for ways in which I could suggest for workflows to be streamlined and more efficient working introduced. This all stopped following my promotion and the stark contrast was that every sensible suggestion I put forward was run past her by my manager and rejected out of hand by her. Including a task I was set to suggest ways in which admin could support us. Every single one of my suggestions was shot down in flames.

I do understand what you are saying about the heavy hint. However, my view is different to yours. As I mentioned I believe the company is protecting the admin manager for reasons which amount to malpractice/fraud in the technical office, instructed by management (something I verbally refused to be part of). This is something the administration manager knows about and I think there is a possibly she is blackmailing the company. Given the company is regulated by the FSA, if this came out they would be in big trouble. I think the company could not deal with the situation as they should have, because of this, and because they know I know about the malpractice, it is most probably easier to get rid of me. And, yes, I did haggle. I have worked for the company for ten years and was not going to walk for an insult.

I was of the understanding that the ACAS code of practice states that the grievance outcome can be appealed. This I did. I was specifically told that if I rejected the WP offer, the grievance procedure would reconvene. Then they changed their mind. I know this to be fact as I have it on tape.

Sorry, I misinformed you. I did not refuse the OT appointment. Looking back over my documentation, I said I was happy to have an OT appointment, once the appeal hearing had gone ahead.

I believe I have no choice but to resign because I believe my employer has not protected me from bullying in the workplace, despite me raising it formally and informally on numerous occasions, to the extent it made it impossible to carry out my job appropriately. I feel I have given my employer every opportunity to resolve the situation (which it seems he can't do as I think the admin manager has him over a barrel) and I feel the grievance procedure was flawed as hard evidence was not considered and contradictory statements between management were not investigated. Therefore I feel there is also the case of a "last straw" situation. I even have a letter from a witness who is prepared to attend court to support me, who write that she witnessed files being slammed on my desk and me being spoken to like dirt by the admin manager. Maybe the tribunal will not view this as strongly as I do, but surely it can be seen there is a common denominator?

Anyway, I just thought I would put these things down for your further view. I know it is not simple by any means. Believe me I am not a sensitive person or a whiner. But I do have a passion for justice and I believe I have been treated very poorly and will receive even worse treatment if I go back. I feel I have no choice but to fight.

I am not attacking your view, just wanted to put you a little more in the picture and would be interested to hear further from you.

Thank you very much for your time with this.

[Mazza951]

Re: Potential Constructive Dismissal Claim

I would add that I really don't think the company want their very dirty washing aired in public.

And it is also important to note that the admin manager made it known BEFORE my promotion that she had "difficulty understanding the concept of liaising with an Assistant Manager". This is in writing and forms part of my evidence.

[Eloise01]

Re: Potential Constructive Dismissal Claim

Hi

Thanks, I appreciate you taking the time to respond to me so fully.

I think I just need to clarify a few points:

Regarding the work related stress. I didn't tell my GP the situation as such. I took ill with Pneumonia (I never get ill and have not had time off work for three years) and it took me six weeks to get over. Following this I was left with severe fatigue and pains in my joints. My GP then fell I was suffering from symptoms of stress coming out in my physical body. I do get your point re the diagnosis, but who is to say also that it was not caused by the work situation? It doesn't work like that - you have to prove it is a result of work and nothing but work. And then you have to prove that the employer is liable in law. Sorry, but some people get stressed by things others don't - liability just isn't that easy.

Work were very aware there were problems. However, it seems they were unable to know quite HOW to address the issue. The administration manager kept insisting that she was my line manager when my own line manager was out of the office, yet I was instructed to deputise in his absence. When I raised this, they would not clarify either way. In other words, they had no backbone and didn't even tell me that it was ME that was in the wrong. This simple issue could have been addressed, but they didn't face it. This is a company who is very unprofessional and management prefer to bury their heads in the sand rather than face up to matters. As a result many good members of staff have left the company. None of which is unlawful!

I had provided hard evidence of the administration manager refusing to liaise with me. Including examples of where PRIOR to my promotion she was emailing me to ask for ways in which I could suggest for workflows to be streamlined and more efficient working introduced. This all stopped following my promotion and the stark contrast was that every sensible suggestion I put forward was run past her by my manager and rejected out of hand by her. Including a task I was set to suggest ways in which admin could support us. Every single one of my suggestions was shot down in flames. Ditto. This isn't unlawful. People are allowed to disagree with you. If the employer wanted something to happen they could have made it happen. They didn't make it happen so they didn't want it.

I do understand what you are saying about the heavy hint. However, my view is different to yours. As I mentioned I believe the company is protecting the admin manager for reasons which amount to malpractice/fraud in the technical office, instructed by management (something I verbally refused to be part of). This is something the administration manager knows about and I think there is a possibly she is blackmailing the company. Given the company is regulated by the FSA, if this came out they would be in big trouble. I think the company could not deal with the situation as they should have, because of this, and because they know I know about the malpractice, it is most probably easier to get rid of me. And, yes, I did haggle. I have worked for the company for ten years and was not going to walk for an insult. This is put up or shut up territory. If the employer is acting illegally, report it. Otherwise, shut up. This could end in a world of pain for you if you make allegations that you cannot prove or are not true. There is no room for possibilities or thinkings - you can prove it or you can't.

I was of the understanding that the ACAS code of practice states that the grievance outcome can be appealed. This I did. I was specifically told that if I rejected the WP offer, the grievance procedure would reconvene. Then they changed their mind. I know this to be fact as I have it on tape. Hmm- and you asked them to tape it? No, thought not. So you have a promise on an illegally obtained recording? And of what - they did not have to consider anything other than the evidence available to them in the first hearing. You have illegally obtained evidence of nothing!

Sorry, I misinformed you. I did not refuse the OT appointment. Looking back over my documentation, I said I was happy to have an OT appointment, once the appeal hearing had gone ahead. You do not decide this.

I believe I have no choice but to resign because I believe my employer has not protected me from bullying in the workplace, despite me raising it formally and informally on numerous occasions, to the extent it made it impossible to carry out my job appropriately. I feel I have given my employer every opportunity to resolve the situation (which it seems he can't do as I think the admin manager has him over a barrel) and I feel the grievance procedure was flawed as hard evidence was not considered and contradictory statements between management were not investigated. Therefore I feel there is also the case of a "last straw" situation. I even have a letter from a witness who is prepared to attend court to support me, who write that she witnessed files being slammed on my desk and me being spoken to like dirt by the admin manager. Maybe the tribunal will not view this as strongly as I do, but surely it can be seen there is a common denominator? A former employee? In other words, someone easily discredited as a disgruntled person? But no - the tribunal will not look for common denominators or anything else. In constructive unfair dismissal you prove your case. The employer is presumed innocent and they have nothing at all to prove.

Anyway, I just thought I would put these things down for your further view. I know it is not simple by any means. Believe me I am not a sensitive person or a whiner. But I do have a passion for justice and I believe I have been treated very poorly and will receive even worse treatment if I go back. I feel I have no choice but to fight.

I am not attacking your view, just wanted to put you a little more in the picture and would be interested to hear further from you.

Thank you very much for your time with this.

There is no justice in courts - tribunals or otherwise. There are winners and losers. That's it. I have represented claimants for over three decades - almost none of the winners thought they got justice! Forget that. You win or you lose. And in your case that is finely balanced with the odds strongly on losing. Do not do anything without taking legal advice. Question anything that says you will win (especially if you are paying the bill!). Be aware that you could lose everything and if that isn't a risk you are prepared to take, don't even start down this road.

[mystery1]

Re: Potential Constructive Dismissal Claim

http://www.bailii.org/uk/cases/UKEAT...4_12_0102.html

In a tribunal you need all the evidence you can get and secret recordings can be used. Any meeting held in closed space that you are not involved in can't be taped (or more accurately used).

Even workers you think are on "your side" will decide to protect themselves in all but the rarest occasion.

A claim needs to be set up long before your job is lost.

M1

[Eloise01]

Re: Potential Constructive Dismissal Claim

http://www.bailii.org/uk/cases/UKEAT...4_12_0102.html

In a tribunal you need all the evidence you can get and secret recordings can be used. Any meeting held in closed space that you are not involved in can't be taped (or more accurately used). This is not accurate. To date the only confirmed and absolute use of covert recordings has been where the disclosure of the recordings are in the public interest - which is very tightly defined. A tribunal is at liberty to refuse to accept covert recordings, and in law is correct to do so - for them to rule otherwise except in a clear public interest matter leaves any judgement open to an appeal The judgement in Vaughn does not change this basic premise, because it did not permit the inclusion of the recordings, and it did not specify cirumstances in which they would be permitted. That would be a different kind of ruling, as to the admissability of evidence submitted - in Vaughn the issue was that the claimant refused to submit the evidence under disclosure. I should, however, point out one comment of the EAT - making such recordings may be deemed a dsimissable offence in itself.

Even workers you think are on "your side" will decide to protect themselves in all but the rarest occasion. Very true. It is an exceptional person who is willing to risk their job for yours - especially if you have left!

A claim needs to be set up long before your job is lost.

M1

The issue of course is that (currently) the job is not lost - the OP is deciding to chuck it away. And therein lies the huge probalem because they shift the burden of proof from the employer to themselves

[Mazza951]

Re: Potential Constructive Dismissal Claim

I wasn't intending to bring the "work related stress into the claim for constructive dismissal". I want to file a claim for constructive dismissal because even if I had not been signed off, I would not want to continue to work for a company that treats me the way it has.

Eloise01, It seems that what you are saying is that employers can do what they wish with their staff, act as unfairly as they want, because they can, and their unfairly treated staff cannot do anything about it. The way they have acted may not be "unlawful" in a legal sense, but surely in a tribunal would view this differently, if it got that far? Isn't this where ACAS comes in? I agree, my employer didn't want anything to happen for reasons that I have explained and therefore has sided with the perpetrator in this. This does not mean that he has acted fairly or in the interests of his staff.

I have evidence and I can prove what I am saying. I am not so stupid to make swinging statements that I cannot back up.

A colleague was present with me in the grievance hearing who is willing to state the facts. I taped the meeting for my own protection. I was of the understanding that the appeal was not to merely rehear the original meeting, but to provide additional evidence etc to add clout to my case. This I did.

I didn't decide anything, I merely requested that which had previously been promised, for the appeal hearing to take place. Had the company believed they were within their rights to continue to refuse it, I am sure they would have done so.

I believe a witness has a certain amount of credibility. I am aware I need to prove my case, and the fact I have a witness and possibly an employee still within the company willing to speak for me, surely must go some way to helping me.

I have had a consultation with a solicitor who feels I have a very strong case. Obviously continuing to see a solicitor needs ongoing funds.

I put my case to this website as I just needed a bit of advice with regard to my resignation letter and whether I should mention in it that I am intending to file for constructive dismissal and also to ask advice on pre claim conciliation.


Thank you also Mystery1 for your input. However, I can only claim once I have actually resigned.

[mystery1]

Re: Potential Constructive Dismissal Claim

I wasn't talking of filing the claim. I was talking about gathering evidence which you seem to know about.

Until another employee takes the stand and gives evidence don't expect it. Many will back out, but by no means all.

M1

[CleverClogs]

Re: Potential Constructive Dismissal Claim

There are other options.

Such as lacing the bitch's coffee with Polonium? :evil:

[CleverClogs]

Re: Potential Constructive Dismissal Claim

There is no justice in courts - tribunals or otherwise.

One may be reminded of the sagacious (if cynical) opinion of T. Petronius Niger:

There's no justice at law; it's the bidding that counts
And the job of the judge is to fix the amounts.

Mind you, he was the arbiter elegantiae at the court of Nero, so one could say he'd fallen in with a bad crowd.

[Eloise01]

Re: Potential Constructive Dismissal Claim

I think you are confusing unfair and unlawful. The two are entirely different and a tribunal is only concerned with the latter. In terms of the law, what is "unfair" is what is unlawful - nothing more.

Here's a recommendation - as you observed, your solicitor thinks you have a strong case. Based on what - the fact that they are going to be paid whether you win or not? Try out some no-win no-fee solicitors and see what reaction you get there. Because they are ruthless in case assessment - if there isn't money to be made they won't take the case. I am sorry to say that I know of some solicitors who are happy to take your money, but that doesn't mean that you have a strong case, it means that they are happy to take your money.

I still suspect that the employer will settle if pushed since they have opened the door to such discussions already. Unfortunately, there are no guarantees on that. But what you put in your letter, if you are intent on such a course, is really up to you, although you must specify to them what you consdier the repudiatory breach to be, that justifies your resigning.

[CleverClogs]

Re: Potential Constructive Dismissal Claim

I know of some solicitors who are happy to take your money, but that doesn't mean that you have a strong case, it means that they are happy to take your money.

It's rather a pity that they cannot be done for soliciting.