Constructive dismissal

[Mozzy9]

I have worked at a smallish company for 12 years. I've worked my way up and now report to the owner. She was fine with me for the first 8 or 9 years but I always heard rumours from other staff about people leaving under "difficult circumstances" and now I understand why. She's such a bully. She gives me the silent treatment (sometimes for weeks at a time), she refuses to help me with things I'm stuck with and ignores my emails asking for help. To the point where she ignores me when I say "good morning" or walks out of the kitchen if she sees I'm already in there.

She publicly bemoans me (and others) taking our annual leave, being off sick (although I've had one week off in 2 years - when I had COVID), taking paternity/maternity or needing to work flexibly (which is contracted). The worst thing is that she never actually addresses issues or gives feedback. I've never had an appraisal. I don't know what I'm doing wrong.

I tried to gently raise this by emailing "I feel like I'm not meeting your expectations, can we discuss?" and again - silent treatment. The HR department have said that I need to put this formally in order for it to go anywhere, but I know if that happens I will lose my job - she will force me out.

I desperately want to leave but I'm 1. really angry that I'm being forced out of a job I believe I am good at because of one person and 2. scared that I won't find another job which is flexible like this one and well paid. I'm applying to four or five jobs a week, but whenever I get to interview and state that I'm looking for something flexible, it goes out the window.

Is this enough grounds for constructive dismissal or am I completely wide of the mark?

I don't have much in the way of written evidence, other than unanswered emails and some "snippy" messages. There's no proof of the silent treatment (obviously!). I don't want to get to the tribunal stage, but I have been told by many people that this is bullying behaviour and I don't want to quit without fighting. Financial considerations are obviously a big element of this but also I don't want her to feel like she's won.

Any advice on this would be really welcomed.

I would contact ACAS for advice.

I’m in the same situation. I don’t know what to do so will follow in hope of answers, but just wanted to offer some sympathy. It really is horrible. I’ve pretty much resigned myself to leaving at this point but still hoping for a miracle. I hope you’re ok.

A few points:

Do you really want to stay at a company she owns, and continue to contribute to her success? Is it really so important to you that she doesn't get to feel that she's won...maybe focus on your own interests and let her feel what she likes and not care? If she is alienating loyal and competent staff like you then that will be her loss in the long run.

Complaining about you & others taking annual/sick/maternity leave etc is obviously ridiculous, these are statutory entitlements. You may have a case for constructive dismissal but it is not really possible for readers here to confirm that; also it can be hard to prove.

Have you sought legal advice on this/are you a member of a union? It would be a good idea to get expert rl advice on this before relying on constructive dismissal.

One option is to raise a formal grievance citing bullying etc. You might not be at all hopeful of the outcome however as she is the owner - you may only do this if you are going to be leaving anyway. The difficulty here is that the 'one person' who is causing you difficulty is the boss and owner of the organisation.

Another possibility is to seek a negotiated settlement.

Are you sure that the reason you have been rejected after interviews is because you have requested flexibility? People often secure a job only after multiple applications & interview so don't give up. Why not consider holding off on discussing flexibility until/unless you get a job offer and then discuss terms at this stage? Btw the law is changing next month to make flexible working requests a statutory right from day 1 of employment - so this should get easier for you.

A tribunal, before they will accept constructive dismissal, expect to see you have exhausted all possibilities through the company’s grievance policy. Otherwise the argument is that you never gave the company the chance to put it right.
You will need to put in a formal grievance and see if that resolves anything
If it is not dealt with, or if the owner treats you worse because of it then you have a possible case for constructive dismissal

You could always try to put a claim in without doing this, and hope they settle before going to tribunal (many companies do) but I wouldn’t advise it

(I have 30 years+ of HR experience and have seen this happen firsthand in tribunals)

The right to request flexible working does not mean the company have to accept flexible working

Constructive dismissal is incredibly hard to prove and you're nowhere near it. Also don't underestimate how stressful tribunals are or how small most payouts are.

Almost every job I see advertised is hybrid. What particular flexibility do you need?

I don't know what I'm doing wrong.

Absolutely nothing, that's what. Time for a conversation with a lawyer to see what your options are.

If you do put a formal complaint in - and she forces you out - you are likely to have a claim for unfair dismissal

I don't think you've got enough for any kind of case, so don't put yourself through it. Sorry.

(Speaking from hard experience at just how much you have to have to win a case. Mine took over three years, with a substantial award at the end, and great mental cost to me. Forget anything internal or management, you may need to go through their process but you won't get anywhere)

That's true, though they can only refuse a request based on limited operational grounds.

Ime constructive dismissal is really hard to prove.

Sounds like you work for a narcissist/sociopath/psychopath. Maybe best to cut your losses?

In practice they can pick one of the reasons (usually impact on quality or performance) and don't need to provide any justification or evidence.

Another option is to put your head down & ignore how she is acting, refuse to be wound up by her behaviour. You asked her directly if there is a problem with you meeting expectations & she didn't respond - so you can assume that there is no problem & just carry on as usual, at least until you find another job.

Not saying you should do this; just that it is an option for you.

If she tries to dismiss you without due process you may well have an unfair dismissal case. But again, you should get specialist advice and (as others have said) consider if it is worth the impact on you to fight this rather than move on.

Actually, there’s quite a few reasons why a company can refuse a flexible working request…

• it will cost the business too much
• the business cannot reorganise the work among other staff
• the business cannot recruit more staff
• there will be a negative effect on quality
• there will be a negative effect on the business' ability to meet customer demand
• there will be a negative effect on performance
• there's not enough work for the employee to do on the days and times they've requested to work
• there are planned changes to the business, eg reorganisation

Even if granted, flexible working requests can be reviewed or changed at a later date if they are no longer working.

Realistically, very few companies are going to grant flexible working requests to new employees. They will have recruited specifically for the hours and tasks they need at that present time and that’s not going to change overnight

Yes, this is absolutely true
Whilst they have to give reasons for their refusal by law, they don’t need to go into a lot of specific detail

A good organisation should ensure the reasons for rejecting a FW request are genuine - but this doesn't really sound like a good organisation as it seems that the boss/owner lacks integrity.

I wouldn’t go anywhere you have to follow the full complaint and grievance process from start to finish and not got a resolution leaving you no alternative than to resign

you will also need to be able to evidence and prove your issues

ether follow the process or leave
so far you’ve done nothing there’s no way you could build a case

'Even if granted, flexible working requests can be reviewed or changed at a later date if they are no longer working.'

FW requests generally result in a permanent change to terms and conditions, in which case no they can't be arbitrarily changed back.

'Realistically, very few companies are going to grant flexible working requests to new employees. They will have recruited specifically for the hours and tasks they need at that present time and that’s not going to change overnight.'

The fact that the law is changing means that flexibility will increasingly become the norm, and employers will or should be aware of this. A lot depends though on the degree of flexibility the employee is seeking - eg if part time is she asking for just 50% of full time hours, or 90%? If the latter it should be easier to accommodate so very strong reasons would be needed to refuse.

I think the op should secure a new job offer first then discuss flexibility. The primary purpose of an interview is not to get a job, but a job offer.

I would agree with this. The purpose of going through the grievance procedure is to show that you have given the organisation the opportunity to rectify things and have shown good faith throughout. Should you afterwards (following legal advice) decide to pursue a constructive dismissal claim this is likely to strengthen your case.

An alternative is to bide your time and wait for a suitable new job opportunity. I think you are on to a loser in the long term with this organisation, as the 'bully' boss is the owner...it is unfair but sadly these things happen frequently in the workplace and loyalty is not rewarded the way it should be. You need to prioritise your own interests here.

The fact that the law is changing means that flexibility will increasingly become the norm

That's just not true. The changes aren't going to make any difference to companies or employers who are against flexible working.

Well let's wait and see shall we? Flexible working is being promoted by the Government and will probably be increasingly expected from jobseekers to attract talent - I think the Covid lockdown situation has changed expectations.

But I agree that there will be employers who are resistant to FW, they may find that they lose out in the long term. The Op's employer seems to be one of those as she even begrudges people their rights to statutory leave. My best advice to the OP is to leave, and find a better employer.

While they "may" be a case for constructive dismissal, ask yourself if you want the hassle?
A far simpler option would be to job seek (on Company time if possible) and hand in your notice when you've found something better.

Court cases are long and drawn out, you need to think of the here and now and start looking out for yourself as it sounds like you could be out the door anyway.