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Anyone an expert on Constructive Dismissal?

(23 Posts)
vigglewiggle Thu 01-Sep-11 21:29:32

I am due to return to work in a couple of weeks and my employer has stalled since January in arranging my return to work. They are now saying the part-time hours I want to work are not compatible with any jobs they have to offer. There are only a few days left until I return!

I am wondering what my options are and I'm hoping someone can give me some first-hand experience of pursuing a case of constructive dismissal.

I am speaking to my union and will of course be speaking to a solicitor, but I also want to consult the wisdom of Mumsnet. smile

Grevling Thu 01-Sep-11 23:23:03

How long have you had off?

Were you part time before you went off on mat leave?

vigglewiggle Fri 02-Sep-11 08:47:40

I have had 3 years off with one year's maternity included. I was part-time before maternity and have increased the hours I will be able to work.

KatieMiddleton Fri 02-Sep-11 09:44:47

Have you been on a career break for the non-maternity years, off sick or something else? And if a career break, when you agreed to the terms did you have the right to apply as an internal applicant for vacancies or the right to return to your old job? Also was the maternity leave period at the end of your period of absence or at the beginning?

From what you've posted so far I can see nothing that would indicate any kind of case for constructive dismissal but I need more information.

vigglewiggle Fri 02-Sep-11 12:23:12

I had a year of maternity followed by a 2 year career break. The terms of the career break state that you are guaranteed a return to a similar post of the same grade within the organisation. You have no guarantee about where that job will be.

I have been trying to sort out my return since January, when I first stated the hours I wanted to work. They have passed my case from person to person and stalled and delayed at every turn. Eventually they decided where I was to be posted but the HR manager for that area has now contacted me to say they have no suitable vacancies. I am due to start work in 10 days time and I have no job!

I was thinking that if they fail to provide a job for me by my agreed start date, that would amount to a fundamental breach of contract?

hairylights Fri 02-Sep-11 14:37:18

Are they offering you a post of any description (even if it doesn't meet your hours requirements) that is fairly similar to the one you left with fairly similar hours? If so you haven't got a leg to stand on.

If not then I see your difficulty and that would be a breach of contract, IMHO.

vigglewiggle Fri 02-Sep-11 16:23:12

No, they are not offering anything within the area I have been told I am to work, unless I work completely different hours. They have said there may be other jobs elsewhere, but they have not responded to my request to specify what and where.

hairylights Fri 02-Sep-11 17:35:23

Well they don't have to offer you one in the same area (from your earlier post) but they have guaranteed you a similar role - I suppose you could argue that similar should include similar hours.

hairylights Fri 02-Sep-11 17:37:06

If I were you I'd turn up on the day you are due to return, at your old place if work, ready to start work, and see the HR person or your line manager.

virgiltracey Fri 02-Sep-11 17:45:19

did you work part time hours before? you have no right to change your hours upon your return.

can't see any evidence of CD yet I'm afraid

KatieMiddleton Fri 02-Sep-11 18:06:36

By different hours do you mean working pattern or total hours? Ie if before you worked 20 hrs per week as administration manager at grade 5b working five hours per day Monday-Friday in the city of London and they offer you office manager at grade 5b for 21 hours per week working three full days at the central London office I would have said that was similar enough to meet the criteria.

You may have a case but it hinges on what they've offered you, what you've turned down and what happens when you're due to go back to work (if they pay you being a biggie). It also depends on the exact wording of the career break agreement.

KatieMiddleton Fri 02-Sep-11 18:09:48

And of course you have to resign to claim constructive dismissal.

vigglewiggle Fri 02-Sep-11 18:34:32

Thank you to everyone who has responded-

I previously worked 2 days per week 9-5. I have asked to return 9-5 3 days per week, but they want me to work shifts, including night shifts which would make it impossible to work set days and would be impossible for childcare. It would also be a completely different role to the one I had previously, though it is something I have done before. They also haven't been specific about a job (location, team etc) they have simply told me this is the only area of work where there are vacancies.

I have no problem about working in a different location, I don't mind a change of role just want a job that fits with the hours I can work. My concern is that having known what my requested hours were 8 months ago, they have raised it as a problem 10 days before I am due to return! Is this reasonable?

I have discussed this with my union representative and their current advice is to do as you say hairy and turn up to where they have said I will be working on the agreed date. As you say Katie if they then clearly have no job for me and I wish to pursue CD then I would resign.

RibenaBerry Fri 02-Sep-11 21:55:21

So you want to increase your hours? Sounds very, very shaky on constructive dismissal to me. There is absolutely no right in law to increase your hours (whereas a reduction can come under flexible working).

Most career break wording is very careful, with caveats if nothing is available and certainly no guarantees of increased hours if requested. You may have a slight chance on CD regarding the late notice - but only if there has been a lack of communication throughout. A lawyer would have to very carefully look at the to and fro of communication to have any idea if that was any sort of a runner.


vigglewiggle Fri 02-Sep-11 22:30:44

They are not objecting to the fact that I want to increase my hours. In fact, they want me to work more hours if possible.

The communications will show regular chasing from me - total inaction on their part. In the space of 8 months 6 different people have supposedly been sorting out my posting. It was only when the union got involved that we got anywhere and that was to tell me I was going to work in an area that has no vacancies.

If I turn up next week and there is no job for me to do, how is that not constructive dismissal?

Don't get me wrong, I'm hoping they will pull something out of the bag, but it is not looking promising. sad

Tiggles Sat 03-Sep-11 17:44:18

Hi, I took a sexual discrimination case and constructive dismisal case against my former employer when I tried to return to work about 10years ago. Without going into any detail, it was found in my favour on the sexual discrimination, but because I didn't go through due process i.e. didn't try and get a resolution through ACAS about the sexual discrimination before resigning I lost the constructive dismissal case.

vigglewiggle Sat 03-Sep-11 18:45:57

Yes I read somewhere that you must lodge an official grievance before resigning. Thank you for reminding me, I will speak to my union.

flowery Sat 03-Sep-11 19:20:35

Surely if there is no job available it would be a redundancy situation? Sounds as though their communication has been poor, but do you have any reason to believe that they won't make you redundant if there genuinely is no suitable job available ?

vigglewiggle Sat 03-Sep-11 19:37:34

They cannot make me redundant. I work in a public sector organisation where they do not have that option. I am being a bit obtuse because I want to avoid outing myself.

Grevling Sat 03-Sep-11 20:59:28

Only public sector I know that can't legally make people redundant is the Police. If that's the case then normal employment law does and doesn't apply - it's a complex area.

Your saying that the hours you want to work are not compatible with the jobs they have. What about the hours you used to work?

Have they offered you any hours / role to return to?

vigglewiggle Sat 03-Sep-11 21:10:52

No point being obtuse any more then! As I said before, I was working 2 days 9x5 before and I now want to do 3 days. My previous hours were no more compatible than my current ones.

flowery Sat 03-Sep-11 23:00:06

I'm genuinely intrigued. If there literally isn't a job available, and they are not allowed to make you redundant, what are they expected to do?

vigglewiggle Sat 03-Sep-11 23:36:24

That's what I'm wondering! They are saying that they are looking at other areas, but the clock is ticking, it is now 9 days until I return and they have not come up with anything. If I can't claim CD either then I'm stuffed!

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