Grievance or constructive dismissal?

[SeattleMarie]

Hello.
I'm new here and I'm trying to find advice about a very stressful situation my boyfriend is in at work. I'd like to find out if he could walk out and go in for constructive dismissal or if it would be better to start a grievance procedure against his employer first. And most importantly, how much costs are involved in a tribunal case?

So, here's what's happened:

My boyfriend has been employed as a web designer by a privately run company. Although there are no contract, employee handbook and other written policies, job description, objectives, appraisals etc, he's getting paid every month. He's been there over two years.
At the beginning of this year, the company (run by Mr X) went into administration, so all stock and employees were 'transferred' to a new company (run by Mrs X and their daughter). Mr X remained the practical boss. The second company doesn't seem to do well either. Over the summer, the bank confiscated the company cars, and stock went into auction, however, that might have been the first company's stock. In October Mr X died.
Three weeks ago, my boyfriend was greeted by a 'second warning' email when he arrived at work. It listed several (trivial) allegations. Needless to say he was shocked. It mentioned a 'grievance meeting' with Mr X but this meeting had never happened. Until then he had never had any complaints about his work. That evening we wrote a reply to all the allegations but it was never sent because, when he arrived at work the next morning, he received a 'final warning' with new allegations.
Acas advised him to ask for an appeal meeting and, although he'd asked for some time to prepare himself, Mrs X set it on the next day. For that meeting he managed to have a witness but he only got to appeal to the procedure, not to the allegations. The daughter ran the meeting and said afterwards she would let him know what their decision was. It all was confusing because there was no proper grievance procedure in the first place.
The situation took a toll on him. He suffers from high blood pressure and once had an aneurysm. The day after the 'appeal' meeting he had a panic attack at work and his doctor advised him to take a few days off. He signed himself off work for five days.
While he was off work, Mrs X sent two more emails with allegations. Once we were done with them, his statement was over ten pages long. All the allegations are preposterous - something like 'you were seen to be listing to head phones' (which he does sometimes when he listens to a tutorial).
When he returned to work, he asked for a meeting to discuss his statement rather than send it by email. The next day (last Friday), Mrs X sat with him and listened. She told him she would let him know about their decision. Once again.
This Monday he made a special effort to be communicative and pro-active, showing his goodwill. Then, a day later, another email with new allegations - but no reply to any of his suggestions.
Anyway, we are now at cross-roads. Of course he could just hand in his notice and be done with it but he doesn't want to accept these allegations. Acas told him to start a grievance procedure against the boss. I'm more inclined to go for constructive dismissal but I know it can be expensive.
What would you suggest? Are there any other ways? Is this a case to justify legal action, including paying a solicitor? How much could that cost and where do we find a trustworthy solicitor? Are those 'no win, no fee' solicitors worth checking out? If anyone's got a good contact, that would be great.
Thank you for reading and your advice!!!
Marie

[FlamingParrot]

Re: Grievance or constructive dismissal?

Welcome to LB

Hello.
I'm new here and I'm trying to find advice about a very stressful situation my boyfriend is in at work. I'd like to find out if he could walk out and go in for constructive dismissal or if it would be better to start a grievance procedure against his employer first. And most importantly, how much costs are involved in a tribunal case?

So, here's what's happened:

My boyfriend has been employed as a web designer by a privately run company. Although there are no contract, employee handbook and other written policies, job description, objectives, appraisals etc, he's getting paid every month. He's been there over two years.

Is he actually employed with a contract of employment or does he invoice them as self-employe or limited company?

At the beginning of this year, the company (run by Mr X) went into administration, so all stock and employees were 'transferred' to a new company (run by Mrs X and their daughter). Mr X remained the practical boss. The second company doesn't seem to do well either. Over the summer, the bank confiscated the company cars, and stock went into auction, however, that might have been the first company's stock. In October Mr X died.

Was he transferred under TUPE (Transfer of Undertaking Protection of Employment)? What was he told at the time of transfer? That he was being transferred under the same terms and conditions as before? Or was he given a new employment transfer? Or just started 'freelancing' for them?

When Company A went into administration, were people 'made redundant' and then asked to join company B?

The reason I ask is because I'm well acquainted with a very similar situation, in the beginning it almost sounded like the same place!

Three weeks ago, my boyfriend was greeted by a 'second warning' email when he arrived at work. It listed several (trivial) allegations. Needless to say he was shocked. It mentioned a 'grievance meeting' with Mr X but this meeting had never happened. Until then he had never had any complaints about his work. That evening we wrote a reply to all the allegations but it was never sent because, when he arrived at work the next morning, he received a 'final warning' with new allegations.

Did he ever receive a first warning?

[FlamingParrot]

Re: Grievance or constructive dismissal?

Acas advised him to ask for an appeal meeting and, although he'd asked for some time to prepare himself, Mrs X set it on the next day. For that meeting he managed to have a witness but he only got to appeal to the procedure, not to the allegations. The daughter ran the meeting and said afterwards she would let him know what their decision was. It all was confusing because there was no proper grievance procedure in the first place.
The situation took a toll on him. He suffers from high blood pressure and once had an aneurysm. The day after the 'appeal' meeting he had a panic attack at work and his doctor advised him to take a few days off. He signed himself off work for five days.
While he was off work, Mrs X sent two more emails with allegations. Once we were done with them, his statement was over ten pages long. All the allegations are preposterous - something like 'you were seen to be listing to head phones' (which he does sometimes when he listens to a tutorial).
When he returned to work, he asked for a meeting to discuss his statement rather than send it by email. The next day (last Friday), Mrs X sat with him and listened. She told him she would let him know about their decision. Once again.
This Monday he made a special effort to be communicative and pro-active, showing his goodwill. Then, a day later, another email with new allegations - but no reply to any of his suggestions.
Anyway, we are now at cross-roads. Of course he could just hand in his notice and be done with it but he doesn't want to accept these allegations. Acas told him to start a grievance procedure against the boss. I'm more inclined to go for constructive dismissal but I know it can be expensive.

ACAS gave the right advice. A grievance procedure is the way to go. Make sure he mentions the impact all this stress is having in his health, including the time when he started suffering from panic attacks amongst other symptoms.

To establish constructive dismissal, the employee would have to show there was a substantial breach on the part of the employer, see this for reference: http://www.personneltoday.com/hr/the...smissal-claim/

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.

Claims involving constructive dismissal have a very low success rate at the Tribunal, around 3%.

What would you suggest? Are there any other ways?

Yes, the grievance route is the way to go.

He should also make sure his GP is aware of the health problems this ongoing situation is causing.

They seem to be making too many allegations against him, which leads me to believe they want to pave the way to get rid of him. If so, this may well be the solution, as it's usually easier to build a case for unfair dismissal when you don't resign, as noted above. :thumb:

Is this a case to justify legal action, including paying a solicitor? How much could that cost and where do we find a trustworthy solicitor? Are those 'no win, no fee' solicitors worth checking out? If anyone's got a good contact, that would be great.
Thank you for reading and your advice!!!
Marie

There are some sources of free legal advice out there. ACAS is one of them, the CABs also offer employment advice. Additionally, there are law centres and law clinics around the country. I've been lucky to find representation in that way for employment matters, twice, 11 years apart! I could suggest the ones I've used but it all depends on where you guys live. :typing:

Another thing to bear in mind is the viability of the company. You say above Company B isn't doing much better than Company A. Let's go all the way and assume he got sacked, submitted an ET claim, won and was awarded compensation. :wof: If the company isn't financially viable, they may well decide to liquidate Company B to avoid paying the compensation awarded by the ET and any associated costs.

The possibility of submitting an ET claim in any event also depends on whether he's had more than two years continuous service, the answers to the questions on my previous post would go towards establishing this fact. :thumb:

[teaboy2]

Re: Grievance or constructive dismissal?

Just seen this thread, really need answers to what flaming parrot asked regarding his status as an employee of freelancer and whether he was transfered under TUPE when company was transferred over to new company.

If however he is an employee, then based on what you have said, yes the grievance procedure is the correct way to go, not only because if means everything will be documented (get him to print off those emails he received too that you mentioned, you may need them), but also it means if he is dismissed he can show he exhausted all procedures to resolve the issue prior to tribunal.

As for tribunal itself, yes there are fees involved but they are not as high as you may expect (Tpye B claim is £250) you get your fees back upon winning. I doubt you would need a solicitor given the clear and utter disregard for employment law and procedures the company has, no written contract itself is a breach of the employment rights act 1996.

Though one problem you may have, is if the company is not doing well, then instead of facing an employment tribunal, they may well go in administration and close the company and reopen under a new name! Basically transfer everything to a new company that they may set up!