Should I just leave quietly...or make a 'fuss' so to speak?

[questions2008]

Right so here's my story, I started work for a small independently run business and one month in fell pregnant with DS who is now almost 8 months old. In the beginning the office manager was lovely and nice and she had just been promoted too and more involved in 'running' the place than her previous role .

but things quickly went downhill after her repeatedly asking if i was pregnant and me admitting that i was. in one of her meetings with me she actually said " i know now that you're pregnant you won't care so much about your job"...and basically she continued to make my life hell til I went on ML. She was also quite strict with the 3 or 4 people in the office too, to the extent that in that 9 month period i think there was a 100% staff turnover rate, ie only her and one other person who was working there are still there and the others have left and been replaced.

its all a bit complicated in that nearly everyone else in this office was cash in hand so all they could do was complain to the boss (who repeatedly did nothing) til they got fed up and left.

I would have left, i so desperately wanted to leave as she literally made my life hell during that time and made me so depressed the whole time i was pregnant, but because I was pregnant I knew that it would be close to impossible to get a new job somewhere else, iykwim. on going on maternity leave i wrote a n emotional letter to the boss explaining how disappointed i was at the whole situation, how victimised i felt and disheartened i was. his reply (written through her - i know his style and her style of writing) was basically denying anything was wrong at all.

anyway, to cut a long story short, my statutory ML is ending this month and I'm at a loss at what to do now. I feel physically sick when i think about going back, I know they don't want me back because they have actually replaced me with the boss's daughter but are now realising that because I'm legit (ie not cash in hand) they may have a problem just saying I don't have a job to go back to. btw, they never even gave me a contract to sign.

My family are saying I should kick up a fuss as basically the whole situation is constructive dismissal. but to be honest i just want to bury my head in the sand and forget I ever worked there or knew that woman. in that case, should i ask them to 'make me redundant' ie so that when i look for a new job i have a "good" reason for having left my old job?

i'm so confused, i don't like confrontation, i'd prefer to just quietly walk away but then i feel so angry at her and the boss for having done nothing to stop the whole situation. can anyone advise me what i should do? what should i be doing if i do want to 'make a fuss'. thanks for reading til here!!

How much do you need the money? In your shoes, I'd be tempted just to leave, but I'm not sure of the legal situation - if you're due money, maybe I'd fight for that.

Sorry, not really much help, am I?

i'm not due any money really, i'm due my job though as I'm only supposed to be on ML. but i'm not sure what i'd be fighting for, as i don't want to work in that situation again and plus they don't want me back as they've already replaced me. oh i'm so confused!

In your situation I would leave and not look back. It is undoubtedly constructive dismissal but I don't think there's much to be gained by fighting tbh.

I would however go and see them, resign face to face to your boss (and on paper, obviously) and ask for a reference as you will be applying for jobs immediately (no explanations of any of this needed!). Be as pleasant as you can.

Then if I'm completely honest I would get a friend to contact them on some sort of headed paper, asking for a reference for you for a made-up job, to check what they are saying about you. If it's inaccurate and you can prove it, then take that up with them.

I'm assuming that's all legal ...

I guess your legal right is to your job back, but they can't make you go back if you don't want to. How easy do you think it'll be to get a different one?

hmmm, the job itself isn't worth fighting for really, it's not amazing or even well paid, it's not even a career i want to follow, but i guess it's more the unfairness of it all. i just feel so angry at them. i guess it's more like what can i do to make it difficult for them, can you understand that? whenever i think about it i honestly feel physically sick and get really stressed about it all. that's why i've put off dealing with it all this time.

You need to consider three things.

1. Do you want to go back?

1. Do you want to fight a possibly lengthy legal battle and could you afford to?

1. What do you want to achieve?

Because you didn't complain at any point when you were pregnant (from what you've said) you can't really complain about your treatment now (at least not to an employment tribunal - it's out of timescale). You can complain about how you are treated now - but have you actually had any formal communication from work?

I don't think you have enough information to be considering contructive dismissal. Have your work told you that they don't want you back? And you do know you have no right to your old job back after Ordinary Maternity leave (first 6 months)? Just one of "equal and similar standing".

You can't claim constructive dismissal until they do something now that makes you resign. And as you're still off you'd need to have emails/letters from the company to prove that they are making things difficult.

If they tell you they don't want you back then you could consider making a claim for unfair dissmissal

Sorry if that sounds harsh, but that is how it will be looked at by a Tribunal and you need to know that before you make a potentially expensive claim.

thanks for that LJ, it doesn't seem harsh at all, i did want to know exactly what I could be facing. i actually did complain plenty of times whilst pregnant, although not on paper but verbally to the boss and he did nothing. on going on ML i also wrote a lengthy letter to him. but i don't want to 'fight' them really.

i am still their employee just on ML, so wouldn't i still be within the timescale? and they don't have any other positions in the company (very small, talking 4 staff inc boss) to offer me if they didn't want to give me 'my' job back.
but should i get them to 'make me redundant' if they don't want me back (which i'm pretty sure they don't)? or would it not make a difference for future jobs if i just resign?

in this climate it would take me some time to find another job, i have applied to couple recently, so i don't know what i could do in the meantime.

Personally I'd look for other jobs while waiting it out. At the moment they haven't done anything you're likely to get a significant pay out for - you have to wait for them to do something. They may well say there's no job for you, but until you do there's no grounds for any case really.

Unfortunately being on ML doesn't stop the clock ticking. You have to go to Tribunal within 3 months of the incident (this can be extended up to 6 months if they drag out their own grievance process) and you must follow the internal process first.

I wouldn't resign because then you'll lose out on any redundancy pay. When did you say you'd return to work before you went off on ML? You can request a keeping in touch day to discuss your return (do this in writing) and see what they say.

Did they reply to your letter you wrote before you went off?

ah i see, about the timescale thing. yes they did reply to the letter, basically denying everything. we didn't talk about when i'd come back to work because they just assumed i wouldn't be! and i was in too much of state to discuss with them.

i received a letter from them out of the blue 2 weeks ago saying they wanted to discuss what i wanted to do about 'returning to work', which i assume is because they now want to be all proper about it. i haven't answered yet as i didn't know what i should do.

these are same who have never given me a contract to sign. as i said before, they are used to employing cash-in hand staff so don't usually worry about rights and contracts.

Before resigning did you complain in writing and/or make a formal grievance? Ideally, in a constructive dismissal case an employee should give the employer the opportunity to put right the actual or perceived breach of contract.

I agree I think your verbal/email agreement was binding. So, in effect your full time position was coming to an end at the end of December and a new part time position was beginning in January.

If you have resigned an employer is usually not bound to accept a retraction. It depends on the circumstances, if say resigned in heat of moment. But if you resigned in writing with an end date and your resignation was accepted, much trickier and less likely you will be able to argue you can retract.

To succeed in any claim you are going to have to show

1/ your employer breached your contract of employment, you resigned in response to this breach. Position is tricky because i) you did not complain pre resigning and ii) you asked to retract your resignation which arguably suggests that either there was not a breach or you have now decided to 'waive' the breach.

But to be honest from what you have said in your email it does sound a bit hopeless. Employer have offered you the new position on a six month contract but you have turned that down. It is going to be an uphill battle to show that i) your FW was not binding, that is the full time job was still yours, it appears that was ended by mutual agreement and you were to be part time from Jan ii) that you were construtively dismissed from your job (which was agreed to be part time from Jan).

It sounds v tricky. Check home contents to see if you have legal expense cover, if you do find yourself a good lawyer, look in Chambers for a lawyer who is highly ranked in discrimination cases. Failing that go to CAB/Working Families 0800 013 0313 as give the complexities of your case it is probably worth speaking to someone. Get on with this as employment cases have strict time limits which must be complied with, generally three months less a day of the act complained of.

whoops posted the above on the wrong thread! Apologies

You may not be looking forward to going back but they can't stop you.

If they keep the boss's daughter on and no longer make your position available to you, by doing so they have breached the terms of your employment contract. Even if you don't have a contract, do you have still have the offer letter from when you joined? Presumably as you said you were 'legit' not cash in hand* do you have payslips to prove your period of employment?

Adding up your dates it looks like you've worked for them longer than one year (this includes your ML). After one year your employment rights are much stronger. If they dismiss you, you have an easier case (i.e. they have to prove why dismissing you was a reasonable act) than if you resign and then claim constructive - then the burden of proof is on you.

You say you wrote a letter complaining of your situation - this could be taken as a grievance letter but despite their response the situation has not been resolved in your view. If they don't dismiss you when you go back but continue to make your life a misery then raise another grievance (stronger this time) and state your objections rationally and unemotionally but adding how this makes you feel. Do not put threats (e.g. tribunal etc) in it. If they still dismiss your grievance then you can use this later if you take legal action. Keep a log of everything that is said and done and keep this at home. Don't use company email for private matters (or anything to do with your employment).

A lot of employers (even just by what I read on this site) think they can treat people badly or unlawfully and get away with it... and it is a totally natural reaction to want to walk away but without making a fuss, but there is a severe shortage of jobs right now and finding something else could take time. Do look, of course, but don't lose heart.

Try to stay calm and rational...remember the saying "don't get mad, get even". And seek employment advice from Citizens Advice Bureau if you need it but remember legal advice can be expensive - even if you do get a settlement and/or costs back later.

Good luck!

[*Employing people (even relatives) cash in hand is unlawful and they will have the HMRC to answer to if they ever have a tax inspection. But that's not your problem.]