DP asked to work away, not in contract!! Help he's resigned!

[Sixer]

This has been going on for a while, DP went away once and ended up away for nearly three weeks. We were about £20 better off.
Nothing is in his contract about working away. Nothing was mentioned at interview. The company have taken on a contract knowing DP is the only one that can do the job. DP said he couldn't work away as we have family commitments. eg swimming paid up front, karate paid up front etc. He did say he would go and travel it. The company have now said he can't do that due to some new legislation (sp) about driving 1.5hrs each way and working 8.
He was called into a meeting last mon and more or less told he can't dictate what he will or won't do, and they want him to work away. "we can get other hobnailers to do the job". So... DP wasn't going to back down, Employer wasn't going to back down. DP not wanting to get into a slagging match and feeling backed into a corner resigned. Where do we go from here? please help?

I know I can't help you with the essence of the question but I do know that lots of people commute daily for an hour and a half and that there is no legislation to stop it. My dh is a teacher and he often travels 2 hours plus away for day courses.

Sounds like they were trying to get him to stay over ? And as it wasn't in his contract then I think they would have to give him notice to require the change.

Maybe he has a claim for constructive dismissal ?

Will he be able to get another job easily? He possibly has a case for constructive dismissal, but it's very hard to prove and it sounds as though everything was said and nothing was written which makes it even harder.

TBH he's probably done the right thing, at least from the point of view of his stress levels, although it would have been better to hold off until he had a few interviews lined up.

He could probably find some private jobs, folk are always asking if he has time. he certainly has now.
What is constructive dismissal?
We had a letter in this morning from the employers asking whether he really wanted to resign as he is a valued employee. Then saying should he want to retract it does not change the requirements that the company reserves the right to reasonably request employees to work away from home as the need arises. This was NEVER stated in his contract. They also paid £7.00 to ensure he had a copy of grievance procedures, and he has 5 days to reconsider. I felt this was the employers back tracking and covering their asses, just in case!

Constructive dismissal is when an employer effectively puts an employee into a position by acting "unreasonably" such that they force an employee to resign. Enforcing a non-contractual condition where there is none pre-existing within his job or where there is no custom and practise (if he only worked away once), and no real consultation about the change (they didn't really discuss it with him by the sound of it), could be grounds for a claim against the employer at tribunal.

However, he should should really have raised a grievance first before resigning, in my opinion. And the right to expect an employee to work away could be written somewhere other than the contract, for example in an employee handbook or policy or procedure.

There could also be some other legislation involved in their decision regarding traveling time and working time. Is he an HGV driver or something like that?

The company are covering themselves by offering to ignore the resignation and sending the grievance procedure. All good practise.

Flowery can maybe explain this a bit better than I'm managing, or have a look at the ACAS website. here

Best of luck either way,

Not so sure about this one, flowery is the best to advice. However, a company's needs may change over time, long or short. They may sign a contract with a new client a bit further away and the client may need onsite support etc, or work carried out on another site. Of course, the company should consult its staff in these matters, but for sure they should not just sack them just because their contract does not specifically state that work may be required out of town, etc, they would try to use the experienced staff they have.

Failing this, they might need to re-evaluate their staffing levels as I am sure it says in the contract that a member of staff must be able to carry out his duties as per the company's requirements. Your dh is no longer able to do this, if the company's requirements changes and they need staff to work elsewhere. So if your dh is no longer able to fulfill his contract, because he is refusing to work out of town, they may be able to terminate his contract. I understand he resigned, so I dont think he will get far with constructive dismissal.

acas will be able to advise

thanks Mners. who else could we turn to.
We have nothing, that says anything about being asked to work away. I have read the handbook cover to cover twice and scanned I don't know how many times. NOTHING is mentioned. He isn't an HGV driver, he's a maintenance man, fixing blocked bogs, repairing roofs and in this case a re-furb.
I realise the company are covering themselves at the eleventh hour, 5 days after the letter of resignation. So where do we go from here. He has no work next week, he could phone around friends family neighbours to try and sort work. Meantime, what do we do next? jobcentre? CA?

I don't think he can get jobseekers allowance for so many weeks after he's resigned, but you might be able to claim income support for the family, CTB plus HB if you're renting. you need to sort those out sharpish - unless you've got savings to tide you over?

I'd second custy that you need to contact acas. They are the professionals, they'll be able to advise you. He should get their advice on how to reply to his employers. Maybe they'll advise a letter saying in his opinion they have unreasonably changed the terms of his contract without consultation, or something?? He should phone them on Tuesday. He's not got a lot of time to reply, has he? He got the letter today, is that 5 days to reply from date of letter or from receipt? With bank holiday weekend, he's got no time to get professional advice - I'm sure it was planned that way! He may have to get advice first thing Tuesday, write letter and hand deliver it same day.

constructive dissmissal

directgov - v. useful

"for leaving your job must be serious - there must be a fundamental breach of your contract. Examples include:

a serious breach of your contract (eg not paying you or suddenly demoting you for no reason)
forcing you to accept unreasonable changes to your conditions of employment without your agreement (eg suddenly telling you to work in another town, or making you work night shifts when your contract is only for day work)
bullying, harassment or violence against you by work colleagues
making you work in dangerous conditions "

directgov

resigning from your jobdirectgov

CAB advice

worksmart useful links there too

Custy I love you, you're the best. And big thanks to the other posters. As I thought! Bas*ds, Dp is ah but, i'm glad to be out, don't make a fuss... bla bla fu**ty bla. He doesn't want a fight. I do. They have done so many unreasonable things over the years. I will not let them do this to us or him. Bring it on. Thank you for the links/tools for this fight. I'll keep you posted when I can. we'll start with a call to ACAS on Tues. I've just re-read contracts and handbooks and nothing is mentioned about work away. Thanks for all your help.

Sixer, I wish you and your dh luck. As a handyman, I dont think he will stay out of work long anyway.

maybe armed with some facts " i have spoken to acas" or "the direct gov website states... and i am seeking legal representation. you could negotiate for a good reference and the months notice pay in leui of 'redundancy'- which might get you through financially and allow you to claim benefits.

?

Thats a good point custy. However DP is still in a "let it lie" state of mind. Which doesn't help. I will mention your post and see if I can get him to a) talk with his employers b) go to the job centre or where ever he needs togo to sign on. c) phone acas. He's a bit flat right now if you get my drift!

This does sound like a change to terms and conditions which they can do if there is a business need but not without jumping through some hoops.

Here about changing terms and conditions, and here about what to do if he doesn't agree to it and his different options.

I've just seen he's resigned already, that's really not ideal, but it's actually quite good of the employer to offer him the opportunity to retract it.

If he were to bring a constructive dismissal case he would be expected to make every attempt to resolve it internally before resigning so his case would not be good at all at the moment as he's not done that.

Are they offering him the opportunity to retract as long as he accepts these terms and conditions, or not? If he can retract but in doing so not necessarily accept the change, then his best bet is to do so, retract his resignation, but then make them go through the hoops outlined in my link in order to make these changes, and take the appropriate action if they don't.

At the moment he really has no case at all. They haven't gone through the consultation they are required to do, but he's made no attempt to force them to do it or bring a grievance or anything, he's just resigned.

Thanks flowery. On Tuesday he hand delivered a letter (replying to their "you have 5 days to come and talk to us" letter). He more or less said in his letter, OK lets talk again, at a hearing, following the grievance proceedures. also please respond within 5 working days.
This morning at 7.30 the postie delivered a 'recorded delivery by 9am' from the employer saying come for a hearing tomorrow at 8am. So thats us up to date. Since Tuesday DP has informed tax credits, informed the job centre, attended an interview at job centre, (we have to wait 7-10 days to find out if we will get any money/help!) and as I MN he is at an interview. So I think we have covered most of it. He can't make tomorrows appointment due to another interview, so will have to re-arrange. Besides he wouldn't be ready by tomorrow. He's still unsure what to say/do, and where he stands. He had no option at the time. He was upset that they were adament that he stays away from home to work, and didn't want them to take discipliary (sp) against him. (Far too proud for his own good). So he resigned instead. In hindsight, as always he now understands that it would have been better to take a written or verbal and still say NO to working away.

Sixer good to hear an update.

His best option would have been to refuse, point out the consultation they are required to go through and have failed to do, and leave the ball in their court in terms of action to take, which then may well have been unreasonable of them.

But hindsight is a wonderful thing isn't it!

Difficult to know how the meeting will go. It may be that if the circumstances will allow, he should retract his resignation and go back to work, but make it clear he does not accept the change to his terms and conditions. As you will have seen from the links, he does have the right to refuse a change, so they can't discipline him for it.

However as you will also have seen, the bottom line is, if this is a change that could be justified as necessary for business reasons, they can force it through if necessary and as long as they do consult properly.

I think you both need to reflect realistically on what end result you can get. The employer has taken on a contract which requires working away. Therefore there is a business reason for the change they want to make. Your DP has a right to refuse but ultimately they could probably force it through, so he needs to think about how likely he thinks that is, and what he would do if that were to happen.

It's hard but it may be that walking away might be the best option. Think about what end result you both want and whether/how it's achievable.

If he is able to retract his resignation (or could realistically say he didn't mean it and it was a heat of the moment thing) goes through this grievance process, they still don't consult properly on this change or anything and/or discipline him for refusing (which is his right), he may well have a good case for constructive dismissal or unfair dismissal if they terminate his employment to force it through without proper consultation.

DP has just returned from an interview. (fingers crosed). I have printed out all this thread and links to show him. As soon as I suggested retracting, he said he didn't want to work for them again after the way he has been treated. He did call and re-arrange the hearing with them, that's now happening next tuesday. Although now he said he doesn't want to work for them again, I can't really see much point. It's hard, I'm trying to stand by him and his morals, on the otherhand i'm panicing how we are going to survive in the meanwhile. hey ho!