Constructive unfair dismissal claim whilst still employed

[andadietcoke]

Has anyone done this and have any advice for riding it out? I've consulted an employment lawyer and have been advised I have a claim for constructive unfair dismissal based on effective demotion/removal of seniority. I'm going to have to start the process whilst still employed there and I have no idea what will happen. Does anyone have any experience of this? How did you cope?

I thought I'd have to do this. It was difficult. I was advised to prepare myself for hostility from everyone, even if they weren't involved, because legal action is scary and most people need their jobs and so will publicly back the employer whatever their private opinion is.

In the end, my solicitor advised that I couldn't claim constructive dismissal without leaving, so I didn't have to see it through. It may well depend on individual cases, though.

If your solicitor has advised you that you can bring a claim of constructive dismissal while staying employed you need a new one.

The whole point of constructive dismissal is that you are claiming your employer's actions have breached the contract between you to such an extent that it is impossible for you to remain employed - you have been forced to resign, therefore have lost your job.

You can't sit there and still come to work and receive a salary while simultaneously saying they've dismissed you by their actions.

You will need to raise a grievance about your concerns and give them reasonable opportunity to put it right, and then if they don't and you feel you have no alternative but to leave because your position is untenable, you resign and then claim constructive dismissal.

Have you gone through a grievance about your demotion yet?

You need to resign first before going for constructive dismissal.

Yes, sorry, I didn't word it properly - what I meant by start the process was the initial informal protected conversation; I understand I can do that and start the grievance without resigning?

A protected conversation is where an employer can, on a without prejudice basis, attempt to negotiate a settlement with an employee for them to exit employment. It's not normally something you'd initiate as the employee and it's not the first step in bringing a potential constructive dismissal claim.

If you are thinking of approaching them asking for a settlement when you've not even raised a grievance yet, let alone put in a claim and gone through Acas, they are not likely to be feeling very generous. Because they've no need to be.

If they've had a grievance raised and have a claim either put in or clearany looming, they may want to consider settling it. But if they approach you rather than the other way around you are in a far better situation.

Right. Thanks flowery, I'm just going off the advice I was given. I wasn't planning to ask for a settlement, can I not have a protected conversation just to say that I'm considering raising a grievance with regards to their treatment of me etc etc etc, tell them I've contacted my insurers with regards to funding a subsequent claim and then give them the opportunity to resolve the situation? Or are you suggesting the proper approach would just be to go in with the grievance penned?

I'd just go in with a formal grievance. I'm assuming you've already raised your concerns informally anyway. If you do so again, and make noises about insurers and claims, it will come across as though you don't really want to go through with a grievance or a claim, are intending to leave anyway, but are hoping to get some money out of them without having to go through a grievance.

Thank you, again. I haven't raised it with them informally, it's all brand new. Just getting my head round it all really. I've been there ten years and have been a senior manager for five so this is all a bit of a shock to the system/very scary.

Will go down the formal grievance route as suggested.

OP, as an employment solicitor your posts concern me somewhat. Either your solicitor hasn't explained things to you very well, or alternatively (& no offence intended) you haven't properly grasped what you have been advised. I recommend you call your solicitor for clarification.

Luna in fairness it's probably me. My head's all over the place. But her recommendation was definitely informal meeting, then grievance, then resign. I'm defeated. I'm so exhausted by it all and it all feels so hopeless. I'll just carry on being employed and sit it out and find something else.

Was this lawyer recommended to you by someone? You mentioned any action being funded by your insurers? Is this someone they have on a panel?

They're a friend. The insurance company will either give me a panel solicitor or cover someone of my choice if they'll take it on as a no win no fee case.

I went through something just like this. I was demoted 2 days after returning from maternity leave under the guise of a restructure- I raised my concerns informally and when they weren't resolved I raised a grievance and then an appeal and then quit claiming constructive dismissal. The organisation quickly settled in the Acas mediation process so I didn't need to lodge anything with ET. My personal advice is don't do anything until u fully grasp the process as once u start u can't really go back (while technically u can, in a senior position if u raise a grievance against the most senior people in the organisation u loose trust, respect etc). I recognised that once I handed in the grievance I was starting the process of leaving the organisation. Also find out which legal company your insurance will pay for- I actually decided to stick with paying personally for an employment law specialist rather then risk the 'general' solicitor my house insurance will pay for. Also I assume u r in the UK- but it will be up to you to prove you have been constructively dismissed not the company If u end up in an ET. Collect all ur evidence before u start the ball rolling and be prepared that u will have to leave with them having no obligation to pay any notice period etc. Also listen to the advice of Flowery etc as they know their stuff- I never posted personally but did read all their entries when I was going through this. Emotionally make sure u have plenty of support around u, take someone in the meetings who can take shorthand (I took my pa) as the notes HR took were ridiculous in comparison and if I had to go to an ET they would have looked foolish. As I said a year on I still wonder what would have happened if I stayed quiet so be sure u want to take this step first

An informal meeting isn't the same as a protected conversation. If you're at the stage of taking legal advice and considering bringing a claim I was assuming you'd already told your manager you are not happy about what's happened. It would be unusual in something like a demotion for the people making the decision to be entirely clueless that there is any kind of issue at the point they receive a formal grievance about it.

But that's not a problem in itself - if you feel raising your concerns informally will make no difference at all and are at the point where you're feeling it's beyond repair and are looking at taking it much further than that, then why not crack on with a formal grievance.

I told her when I was told about the change that I considered it to be a demotion. I was fairly distraught. I don't think she has discussed that conversation with anyone else. I called another solicitor this morning and he advised that the company would just say that it was down to business need, and that as my salary and title haven't changed I might struggle. So that's the end of it all. I'll sit it out and find something else. At least it's meant that I've got a copy of my contract and there are no restricted covenants in there at all for future employment, so that was worth knowing.