Question about resigning and constructive dismissal

[Portabella24]

Hope someone can answer this for me.

I have been signed off from work with stress after a year of appalling treatment by my manager (I have been in my job for 5 years). I am due back in a couple of weeks and will return even though I am dreading it. I have decided that I will resign on my first day back.

My question is that if I claim constructive dismissal can I resign but stay and work my notice? Apologies for what might be stupid question. Would it be better for me to raise grievance as part of resignation process and then claim constructive dismissal when inevitably the issues I raise get dismissed again.

I realise that I am asking you to accept that I have a good case but I don't want to give details here for obvious reasons. Just to say that I have been complaining about issues to my manager and HR for over a year and am devastated that it has come to this. I am in my early 50s and am panicking that after this on my record, I will find it impossible to find work again. If I stay where I am, I think I will have a complete breakdown.

Thanks in advance to anyone who can help. Need to make a plan.

To bring a successful claim for constructive dismissal you would be expected to have exhausted internal options for resolving your concerns before resigning. If you haven't yet raised a formal grievance you need to do that, not just to assume the result of doing so would be no improvement. You may know that to be the case but as I'm sure you can appreciate, an employer could very easily paint that as not giving them reasonable opportunity to put things right.

The whole point of constructive dismissal in these sorts of circumstances is that your employers actions have made your employment untenable, and there's no way you could possibly continue to work there.

Coming back "well enough to work" from work-related stress and working out your notice would obviously undermine that position and would give your employer ammunition to say it can't be that awful as she's well again from stress and is able to work here during her notice period.

Thanks Flowery I appreciate you taking the time to reply even if it isn't what I wanted to hear.

Would it hold any weight at all that I raised concerns on many occasions (both verbally and written) which were ignored?

I know it shouldn't be, but the grievance process is quite an emotive process and seen as last resort at my organisation so I avoided it at all costs until too late. Obviously I wish I hadn't now.

I don't feel well enough to return to work but have lots of supportive colleagues and to be honest I could put up with whatever they throw at me if I know there is an end date.

Thanks again

It's not that it wouldn't hold any weight at all, having raised things on a more informal basis, but your employer would argue that you are not justified to say you were forced to resign as at no point did you consider the issues serious enough to raise a formal grievance.

I understand why you've avoided it, and it's fine for a grievance to be a last resort, but you need to actually use the last resort.

If you're not well enough to return to work, why are you considering doing so? If you're going to resign anyway, why not stay signed off during your notice period. If you do want to consider a legal claim and therefore need to raise a grievance, do that while being off sick?

You absolutely must raise a formal grievance. If you don't, this will strongly count against you if you get as far as an employment tribunal for constructive dismissal. You basically won't have a case if you don't raise a formal grievance.

Just to add, I was in a similar position to you and the above is the advice I was given by a specialist employment lawyer. I raised a grievance and we used that as a trigger to negotiate a settlement agreement. I never had to return to work from sick leave and I'm now very happy (and fully recovered) in a new job.

I'm uneasy that you believe you have a viable case for constructive dismissal. If you've gone a whole year but haven't raised a grievance yet, then I believe you've missed the boat.

Your employers would put up a defence at Tribunal that you didn't raise their awareness about your issues at the time and by continuing to work at the company for 12 months under conditions that you're claiming were unbearable, you basically gave the message that you accepted the conditions within your employment contract, and therefore Constructive Dismissal isn't relevant.

Going through the Grievance process is a feat of endurance, lasting between 8 and 16 weeks, so I wouldn't underestimate its effect on your stress levels and health.

Working a notice period isn't normally compatible with CD because you're stating there is technically no contract and therefore you don't have any contractual obligations to fulfill.

You could work your notice but it might give a mixed message.

The constructive dismissal route means you resign, then take the employer to a tribunal to claim that you were effectively dismissed, and that the dismissal was unfair.

It would be an incredibly stressful route to take, with a low chance of success and a smallish payout.

A formal grievance, followed by a settlement agreement and an agreed reference would be a much better route for you.

Are you in a union? Would be worth speaking to Acas.

Useful:

www.landaulaw.co.uk/constructive-dismissal/

A formal grievance, followed by a settlement agreement and an agreed reference would be a much better route for you

If only it were that simple! What if the employer denies any wrongdoing and does not uphold the grievance? A Settlement Agreement is only a better route if the employee can prove wrong-doing and/or the employer is forced into a position where they have to accept that the employee has a strong enough case to take them to Tribunal.

Getting to that stage can take months of stress and is very often the reason an employee has to walk away. Plus the fact a Tribunal is out of reach for many, many people. Tribunal is worth it when the case is clear cut, but CD is tricky to fight - not impossible, but the technicalities are complex as the Philip Landau link states.

Constructive dismissal is probably the most difficult case for an employee to bring successfully. You have some significant hurdles to overcome.

Sorry, I meant to say Plus the fact a Tribunal is out of reach for many, many people due to the cost involved (even though Tribunal fees have now been ruled unlawful and don't apply)

Daisychain, I agree with you about ET and CD.

Obviously getting a settlement agreement isn't at all cut and dried, but it would be more reAlistic to try for that than to pin hopes on a tribunal.

However, just seeking out another job might well be the simplest solution, even if OP feels as if the employer owes her more. In reality, sometimes its necessary just to walk away, especially if staying off sick/with stress or becoming embroiled in dispute is likely to make it harder to find new employment.

Acas can be quite helpful, but there would need to be a grievance lodged.

If you want to pursue a formal route (rather than resign and move on) then I agree with others that you need to follow the processes your employer offers for resolving problems, including raising a grievance. Sorry that's not what you wanted to hear and I can understand why it's not an attractive prospect.

I think you need to think what you want, where you want to be in a years time and think what is the best route to get there. I am really struggling to understand what you really want and why you are thinking of CD. Keep focusing on what you want your life to look like in one years time and what you want for yourself and let that guide you what to do now. Say you won CD (and you are a very long way off that yet) so what? Where does that get you? What is it you actually want?

It's certainly possible to have a constructive dismissal triggered by a "last straw" in a series of incidents, or a long-running situation - it doesn't have to be one incident, but I would agree that if this has been going on for a year, it is leaving it late to decide it's bad enough for a formal grievance.

OP I think you shouldn't rush back to work. I think you should go to a competent employment lawyer locally, explain everything that has happened, and seek an honest opinion about whether you might have a reasonable claim for constructive dismissal if you raise a formal grievance first, and ask for an honest view of what the process of bringing a claim will be like, and the chances of a settlement, which is I presume what you will be hoping for.

Then make a decision to either walk away or to pursue it. A formal grievance should really be heard within a couple of weeks maximum, unless it's very complicated, lots of people are on holiday and involves obtaining lots of witness statements, which may or may not be the case. Some employers are slow, but there's no reason grievances can't be heard promptly, and they certainly should be.

But as I say, I would encourage you to seek some proper real life advice first. If you want to bring a claim you'll need to raise a grievance but proper advice may reveal that your claim is not solid in which case it's not worth putting yourself through a grievance.

OP I think you shouldn't rush back to work

I very much agree, especially if you can use the time while you are away firstly to recover your emotional and physical health, and also maximise the opportunity to get advice, look at alternative jobs etc.

It's a period of time to take a deep breathe away from the intensity of your situation, which can feel like a pressure cooker wanting to explode.

Look after yourself first and foremost!

Thank you all so much for your sensible advice.

I don't think my situation is that unusual. Each incident on its own seems too trivial to raise a grievance about but there is a point where despite your best efforts to compromise, see the business perspective, be adaptable, a good employee etc, something happens - I think Flowery called it a 'last straw' where everything just breaks. It was something quite small in the end. Along the way I have been made various promises by management that I can see now were just designed to appease me and defer a problem.

I walked out of work and straight to GP where my blood pressure was far too high and I sat there and sobbed. Sounds pathetic. I am a professional used to deadlines, pressure etc and I just can't go on.

I need to go back to work because in a month's time I will be put on SSP and I can't pay the bills. I am on 3 months notice and that provides some financial breathing space. As I said before I have so many supportive colleagues who are horrified by how I have been treated.

I was very confused but thanks to you lovely people I feel a bit better about raising a grievance during my notice and hope they settle with me. I do agree I need to provide all the details to an employment lawyer who can tell me what my best option is.

Thanks again. And I think the moral is that if you think your treatment is unfair and you are on a slippery slope to being managed out, don't wait until you are sick to do something about it because you are definitely at a disadvantage then.

Hi. My employment law is out of date but I would strongly recommend if that is your aim you take some advice now, before you resign and before you attempt to raise a grievance. There are some things written below as an ex HRD that I disagree with but as I say I have not worked in HR for a few years so things may have changed. And I am very aware I worked in a very specific industry which had its own style (think the Wild West 😲). But from what you have written down you could have a difficult few months ahead if you go down the CD route. It may not be impossible but you need someone to talk with all the facts to weigh up your options. Obviously you have not disclosed anything here which is understandable so no one knows if you have any chance of any success. If you have a reasonably high salary/bonus etc, & the case is reasonably clear cut, your company may be minded to be sensible re a compromise agreement so it may be worth it.

Being represented (and be seen to be represented) by a solicitor can be a game-changer.