Constructive dismissal, DDA discrimination or just leave quietly - please help me understand the options

[tryingabitharder]

Hello lovely employment issues people. My very dear RL friend is being royally mucked about by her employers and has a meeting with the owners and managers tomorrow, I'm trying to help her decide what she wants to do.

Basically she's been off sick (she's a vet) with work related stress at the end of 2009 (Oct to Dec) and started a phased return to work in Dec as advised by her GP. Her employers agreed a 3.5 day start increasing to 4.5 days over time, and she requested not to be returned to her previous 5.5 days. They agreed subject to her signing a new contract once the long term hours were settled.

At the start of January she was informed that practice opening hours were being extended so her 4.5 days would be the same number of hours as the (previously unworkable) 5.5 days. She said she'd keep her hours at 3.5 days in that case, which is her min income requirement to live on.

She then recieved a letter with the options of previous full hours (5.5 days) or taking a 2.5 day week, and replied in writing selecting 5.5 as 2.5 days was not financially feasible. They refused this unless the GP wrote a letter stating she was fit for full time duties which at that time she would not provide as she had written a report stating she felt a 3 or 4 day week was required.

The 2.5 days offer was then restated by email, leaving her no option but to resign.

She's been on holiday and is due back tomorrow and desparate to resign, but not sure if they can force her to work 2.5 days for notice period (8 weeks) or if she should take this further.

Some other facts:

• She's worked for them for 5 years with no previous employment issues
• her working conditions were directly responsible for her breakdown
• they have repeatedly contacted her throughout her sick leave
• the practice managers have behaved in a way that looks to me (as a biased outsider ) like bullying
• the real reason they are trying to force 2.5 days is that they've already filled her not-vacant full time role by offering a permanent contract to the locum who covered her sick leave.

Sorry this is a bit long, she's got to face 3 of them in a meeting tomorrow and is really confused after talking to the CAB and an employment lawyer by phone in Glasgow who made her cry. I love her lots and would reallly appreciate any advice you can throw my way that I can pass to her. If I'm right her options are:

• constructive dismissal (forcing her to work fewer hours)
• discrimination under DDA on mental health / stress related issues
• just resign and get out of there.

First two costly in fees and stress, last one v hard to swallow so longer term health damage potential.

but would love your thoughts.

Thanks!!

I dont think constructive dismissal would apply, they have offered her either her previous hours back or a part time option. They have no legal obligation to give her exactly the hours she wants due to her financial commitments.

Discrimination under DDA I dont think would apply, they seem to have followed the phased return and let her build her hours back up on return. They are also offering her a part time option as she cannot work full time.

If she cannot live on 2.5 days pay, how will she cope if she resigns?

Fair point, HMOO, she's willing to risk her home rather than keep working there and will go and live with her parents again if it comes to it (not that they love that idea I'm sure but don't want a second suicide attempt either).

Are they really letting her build her hours up when they force her to give up her full time contract after one month of reduced hours? I thought she'd be allowed to keep her contract and work back up towards it, her GP reckoned a year was a normal amount to time to take to get back to full time, and she needn't have been so honest with her employer up front about not wanting to do 5.5 days in the end, iyswim.

I know they don't have to accommodate her needs per se but it just seems a bit rough that they are whipping the full time job away from her - to be clear, they are no longer offering her that, as they think she's not fit.

Forgot to thank you for replying, HMOO.I have to scoot out for a bit but will check back later for any other thoughts.

I disagree actually. I agree that the DDA won't apply. Mental health issues can be disabilities but two months off with stress wouldn't be a disability.

I do think she may have a case for constructive dismissal though, something I rarely say!

She is not being given the option to continue on her existing terms and conditions. She is being told she must either significantly increase her hours by working longer days, or drastically reduce her hours. She shouldn't have indicated that she'd accept the increased hours, but then they seem to have told her she can't have that anyway. Changes to terms and conditions must be agreed by both parties. It can be possible for an employer to force a change through where it is necessary for business reasons, they consult properly, look at all alternatives, etc. It doesn't sound like any of those apply tbh, so it's unlikely they'd be able to force it through. Have all her colleagues accepted the hours increase? Are the employer offering an appropriate salary increase to reflect the increased hours?

Her employer are also withdrawing a previously agreed phased return to work. They are not obliged to phase anyone's return to work, however it's sensible to do so as obviously the alternative is people being off longer. They have also recruited someone in her place.

Your friend could claim that the decision to appoint someone permanently in her place demonstrates that by withdrawing the medically required and previously agreed phased return to work and forcing your friend to accept a drastic reduction in her hours, her employer were hoping she'd feel neither of those were acceptable and would resign.

I'd suggest she writes to them saying that she understands that her consent is required to vary her terms and conditions. They are proposing either a significant increase to x number of hours, or decrease to y number of hours. She does not consent to either change and considers her previous contractual hours of z to remain in force. She also understands that they are withdrawing their agreement to the medically required phased return, and as a result she will be obtaining further medical certificates until her doctor feels she is able to fulfil her contractual hours of z. She will consider any attempt to forcibly increase or reduce her hours to be constructive dismissal and will act accordingly.

mwah! xx

Flowery you are a legend, thanks so much for your reply

Another question then - given she feels she really cannot work there again with all that has happened I know she wants to hand them her resignation tomorrow. Do you think she needs to postpone resigning to be able to act on the constructive dismissal?

And (I know this is a hard question) what would you estimate the cost of her acting on it might be? I know she's living on credit cards and overdrafts since she's not been earning while off sick, so cost is a big issue.

Thanks again!

Not necessarily. She could resign and claim constructive dismissal on the grounds they have made her life so unbearable she feels her employment cannot continue. You do mention that there might be a general pattern of horrendousness.

The trouble with that is it's all subjective and difficult to prove as being justification for resigning. It will involve a lot of wrangling, lots of mud being thrown and a long stressful drawn-out process. She would also be expected to have made every attempt to resolve the problems internally, which would normally mean a grievance. I assume she hasn't done that yet? She would need to do at least some kind of formal letter setting out her concerns and giving them an opportunity to respond and put things right.

Constructive dismissal is much easier to claim when there's clear and objective evidence of a breach of contract, or an attempt to forcibly and unreasonably change contract terms. So if she can do it on the basis of their attempt to force a change to her terms and conditions, (possibly all the other stuff as well), it would be much easier, less stressful and probably cheaper. She would need to make it clear formally in writing that she does not agree to the change.

It sounds as though it's pretty clear she isn't fit for work at the moment so I suggest she needs to get another sick note from the doctor while this is resolved. That would be perfectly reasonable under the circumstances.

In terms of how much it costs, as you imagine, it's very difficult to say. Most claims don't actually make it as far as a tribunal, so it would probably be a settlement at some point, although that's obviously not guaranteed. She would be expected to search for a new job once she's fit for work, and if she gets one, her compensation would immediately go down as it's based on financial loss only.

if cost is a major issue she could consider a no win no fee solicitor. Someone like that would for obviously reasons only take on her case if they felt confident of getting something out of it.

Thanks for your update Flowery.

She told them in the meeting today (and confirmed in writing) that she expects to be allowed to do her previous full time hours and will be handing in her notice, if they force her to change to shorter hours she will take out a grievance (sp?) and go down the official route. They are going to let her know by lunchtime tomorrow.

She's heard they are pretty busy on personnel stuff as another of their vets in a different branch is taking an unfair dismissal claim where they've blatantly not followed their own disciplinary process.

I didn't know about no win no fee solicitors for employment stuff, v v interesting.

Now off to look for different help as I have a randomly screaming 2.7 DS and no idea what to do - have ascertained he's not in physical pain but that's all.

Thanks again

Agree with Flowery, DDA does not normally apply to a few months off for stress. Even though you allude to a suicide attempt earlier in this thread, there would only be a slim chance of claiming this if she disclosed her 'condition' when she joined the practice or during the course of her employment. Even then it would have to be corroborated by medical or occupational health reports etc.

In terms of constructive dismissal, it IS very stressful and demoralising and, given her current state of mind, she may find this difficult. If, after their meeting, what they offer is not acceptable to her despite her submitting proposals as to what is, this could breach the terms and conditions in her contract and their insistence on her doing what they want could be deemed to be the 'last straw' and she had to resign as a result. If however, she simply refuses to change her hours, what are they going to do? Sack her? In which case she could claim unfair dismissal (not constructive) and the onus is on them to demonstrate why they did so.

Is she a member of the BVA? If yes, she may be able to get advice and free legal advice as well if they feel she has a good case.

Hi Wipunzel,

Thanks for this, she's spoken to the BVA now and between their advice and the advice from here she's now fairly clear that she'd prefer not to take a claim but she is willing to stand up for herself more, so when they came back to her again yesterday and re-iterated 2.5 day offer only she submitted a greivance instead of her resignation and we'll see what happens from here. And she's sounding stronger than I've heard her in ages, just from knowing where she stands, which is wonderful