If you have to leave due to constructive dismissal . .. ?

[Angelwoes]

In the even that you have to leave a job due to constructive dismissal, firstly, how do you afford the legal fees when you are out of work? And secondly, what happens with regards to eligibility for JSA? It says on the JSA website that you can be prevented from JSA for up to 3 years if you voluntarily leave a job. .

I am quite probably going to face this situation very soon :/ Thanks

Legal fees, obviously if you're in a union they can help. But lots of people have legal expenses cover in their household insurance or bundled in with bank account, so that's worth a try. Or look for a no-win-no-fee deal.

Yes you have resigned (although you would be alleging that you are resigning in response to a repudiatory breach of your contract).

Constructive dismissal is the most difficult claim to succeed with. Are you sure you can demonstrate a breach of your contract? (and are you sure you haven't affirmed the breach by continuing to work?)

There is a scheme for allowing you to pursue the claim without paying the fee

You're unlikely to get a no win no fee arrangement unless your case is extremely strong.

So basically this means that when my flexible working request is officially refused following return from mat leave . . and my hours are changed to shifts all over the place, I basically have to "Just deal with it", or leave and pursue constructive dismissal which I would be unlikely to win anyway? :/

Oh hang on, I saw your post last night. Your case isn't necessarily constructive dismissal. Remind me of the facts and how long you've been employed.

I was told by ACAS that if you have been working a set pattern for a long period of time this becomes a contract in itself. . even if the actual contract is deliberately woolly and only mentions being flexible as required for the needs of the service :( It seems that my employer is in a win-win situation.

OK, I've been employed for about 3 years in a Mon-Fri 9-5 role. Having been on mat leave I requested a reduction in hours informally which I was told to address later. I then emailed again and I was told that I could no longer have set hours and days but that I have to enter a random hours rota system of long days/weekends etc. None of which I can A. do fulltime or B. do due to childcare issues.

The only other suitable employment is in a team where a malicious ex partner works. He had been spreading lies and inciting the sending of hate mail to myself, so clearly I can't go and do the same role there either. . .

Can't advise on benefits, but in your situation I wouldn't resign, I would explain that you can't do the rota due to Childcare and put the ball back in their court.

Presumably you could find Childcare for Monday -Friday 9-5?

Right, that's not exactly what your previous threads said. Clearly there's a lot going on here and MN isn't the best place to get comprehensive and clear advice but basically if you have taken more than Ordinary mat leave (which you have) then you don't have the right to return to your old job if its not reasonably practicable to allow you to do so (for example if there has been a restructure). The new role must be on similar term to your old role and you must not suffer detriment. It appears that the new shift pattern amounts to potential detriment.

This is the law on the remedy:

"If the employee is not permitted to return to the same job on no less favourable terms and conditions, or (where it is not reasonably practicable to permit her to return to the same job after AML) if the employer does not offer the employee a suitable alternative job, the employer will be at risk of a claim of pregnancy and maternity discrimination and automatic unfair dismissal (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).
On return from AML, if the employee is offered a suitable alternative job (assuming it is not reasonably practicable to permit her to return to her old job), and she unreasonably refuses to accept that offer, it will not be automatically unfair to dismiss her (regulation 20(7), MPL Regulations). Whether a dismissal in such circumstances is unfair on ordinary principles will depend on the circumstances surrounding the change of job or terms. The BIS guidance states that if the employee unreasonably refuses a suitable alternative offer then "she will have effectively resigned".
If the offer is not suitable, the employee may refuse to accept it and treat herself as constructively dismissed (assuming there is no express dismissal) and bring a complaint of unfair dismissal.
Even if she accepts the unsuitable offer, she may bring a complaint of unlawful detriment and/or sex discrimination if the change in job or terms was because of her pregnancy or maternity leave."

I think you need some real life advice. There are clearly a number of issues here all of which need to be considered carefully to determine the potential claims and the best course of action.

Technically yes, but I need to not be working full time due to childcare costs . . they don't really need me as they have been fine while I have been on mat leave.

Thank you for the detailed info redsquirrel, I had wondered if it was more a case of discrimination rather than constructive dismissal as no actual dismissal has occurred. . .

Would an offer of Mon-Fri 9-5 be construed as a reasonable offer i.e. a return to my regular shift patterns but without having the flexible hours request granted? This is the other way they could get me out of my job . . by making it so I was unable to practically afford the childcare costs :(

You have no right to work flexible hours. You only have the right to have your request considered. Its very easy for an employer to avoid that one. You do however have the right to the hours you were working previously

Thank you . . and I would have no grounds for discrimination due to being a single mother with respect to cutting my hours? I feel like I am going to have to leave regardless, as if they put me in this situation I will again have to resign :(

I'm an employment solicitor can have a chat with you about this if you pm me your details.

You have no right to insist on flexible hours. You have entered into a contract to work a certain number of hours. You have the right to make a flexible working application but they are likely to be able to find a business reason to reject it.

I would speak to them. tell them that you're aware that they are obliged put you into a suitable job and that the hours they are proposing are not suitable. You can always suggest you take voluntary redundancy and see what they say.

Ok, I will do . . are they obligated to give me all my accrued annual leave in my notice period out of curiosity?

They can probably insist you work your notice and take any outstanding leave during that time (depends on the wording of the contract). They don't have to make you redundant. Its not something you can insist upon. You would effectively be telling them they've messed it up and suggesting a way forward. Its not the only option. As I say I think you need RL advice not MN advice where we don't have all of the information.

Redsquirrel, I thought of another issue which might help me argue for a reduction in my hours . . . basically there are 3 other people employed to do the same job as me and they have all been allowed to drop from 5 days to three days and they don't have any childcare issues. I would be the only member of the team forced to keep my hours - would that not be discrimination?

Not necessarily. They already work lower hours. You are asking to drop your hours.

Take some RL legal advice. I'm now confused about whether they're changing your contracted hours or not. You need to sit down with someone (even if its just citizens advice which is free) and set out the whole story clearly.