Constructive Dismissal???????? Compromise Agreement?????????

[teaboy2]

Its three months from the date of termination of contract of employment Madari, as honeyb is still on gardening leave then her contract has not yet been terminated. So as yet the 3 month ticking clock hasn't started ticking yet.

[madari]

You are missing the point,

 

If a tribunal claim is submitted whilst HB is on gardening leave it will be difficult for the employer to defend....as stated previously HB does not need to resign, this can be done whilst HB is still on the payroll.

 

HB will not be able to argue the contents of his current`grievance` to a tribunal once the three months time limit has elapsed, and i am sure this is what the employers tactic is at present.

 

I speak from experiance.

[teaboy2]

Its 21 days from the date the grievance is resolved/exhausted, which as yet it is not resolved nor is the procedure exhausted, she is in the process of issuing a second grievance in response to the counter grievance issued (making the grievance procedure on going) so there is still a fair way to go yet before we need to worry about time limits, as all the grievance's will be deemed as 1 single issue.

 

If they were to dismiss her as you described above, then she would, regardless of 21 days of the grievance being exhausted, still have 3 months from the date of termination to apply to the ET for automatic unfair dismissal. Which is better than resigning and then having to prove constructive dismissal which is very very difficult to prove.

 

You say it will be difficult for them to defend an ET whilst honeyb is on gardening leave, i disagree as so far the only evidence we have for her being put on gardening leave it because she express a fear for her own safety at work. So if the employers come back with evidence of that be the reason and the grievance is still in the process of being resolved etc. then honeyb is going to look pretty stupid at the ET, isn't she, don't you think?

 

I do not know what the background to your ET experience is, but lets not get carried away with ET just let when theirs still plenty of time on the clock.

 

P.S. the 3 month time limit is not a fixed limit it is a general rule, and the ET do in exceptional cases such as this waive the 3 month time limit.

Edited May 5, 2011 by teaboy2

[madari]

Hi,

 

I am not suggesting that HB take constructive dismissal nor am i suggesting issuing a claim to the ET.

 

My only concern is that the employer is most likely playing a tactical game by putting HB on gardening leave and thus she needs to be

ready with her options instead of doing nothing.

[teaboy2]

Yes I understand that, but its way to early to start preparing for the ET option, and chances are this can be sorted out within a few days.

[madari]

Chances are that the employer is looking to Dismiss HB by keeping her on extended gardening leave.

 

This view is supported by the fact that HB`s grievance was upheld, when she states that `she won`,on this point I believe the employer is left with a situation of `what if HB returns to work and finds that nothing has changed?`so to be on the safe side the employer is buying time for himself so that any subsequent ET claim brought by HB is weakened,if the employer can find a reason or way to dismiss HB before HB has had a chance to blink an eyelid.

 

You will be surprised as to what tricks employers get up to !!!!

[teaboy2]

Madari, i know all about what tricks employers get up to, i have been around long enough to experience the worse of them.

 

What your saying is pure speculation of what you believe the employer maybe upto.

 

Yes Honeyb is on gardening leave, not because her grievance was upheld, but because she made it clear she feared for her safety. So the steps the employer took was to protect her if anything and is a perfectly logical and reasonable step to take in such circumstances where acts of violence have occurred. The period of gardening leave will have no bearing on any future ET claim as it is all part of the same dispute, as such any dismissal no matter if it happens on today or 6 months of gardening leave down the line, it would be seen as all steaming from the original grievance, the original grievance is not deemed as resolved/exhausted until Honeyb is back at work. Just like a disciplinary/appeals process is not deemed as resolved/exhausted whilst the employee is still suspended from work.

 

Also when you say this "This view is supported by the fact that HB`s grievance was upheld, when she states that `she won`,on this point I believe the employer is left with a situation of `what if HB returns to work and finds that nothing has changed?"

 

its more likely that they are looking at ways to prevent such situation from happening. Yes honeyb has won, but the her attacker has the right to appeal and given the fact her attacker has issued a counter grievance then its fair to assume they are appealing the decision, hence why they say the matter has not as yet been resolved. Which is supported by the employers statement posted by Honeyb in post 8 "The board feels that it is not appropriate until the grievance issues are fully resolved,"

 

Even if you were right, they simply can not dismiss her after 3 months of gardening leave, without going through a disciplinary procedure, so any dismissal such as what your speculating would not weaken her case, but more like solidify her case and make it a case that would be impossible for the employer to defend.

[madari]

Let us wait and see......and let us hope that HB keeps us updated.

[teaboy2]

Agreed.

 

There's not much point us arguing about what may and may not happen or what we can do about it if it does actually happen.

 

Hopefully between both of us, we can help honeyb get the issue resolved before it needs to go that far

[honeyb1234]

Hi guys sorry I havent replied sooner but things have been very hectic, so basically this all started in March and I have been off work since then, yes I still have not returned! we have had a meeting for my grievance and my grievance was upheld, although the other party involved put in a counter grievance and it was held that part of hers was also upheld (in that I had been hostile towards her) which is true although this is because of the treatment that I had received. I had since aske for the minutes and was told that I could not get them due to confidentiality. It was suggested that mediation should be taken in order to give the company feedback to which I agreed and the other party didnt. As this was not agreed to I said that I was not willing to go back to the workplace until mediation was sort and my workplace should be made safe. One of the board members suggested that I should just go back and see how it goes and that in his opinion we should both with draw our grievances.

 

As this was not a option I have now been offered a copromise agreement of £1000 which they say works out to be £406 pay in lieu of notice if I agree to end my contract and the rest a goodwill gesture and a extra £300 for legal expenses will be reimbursed, a reference and an inpit into a statment that would be relayed to staff. I am not happy with this at all and am not sure what to do. I did ask the individual who proposed this offer if there was any other option and she said no.

[honeyb1234]

Hi everyone,

 

I have been having alot of problems at work for around a year and a half and in March I was verbally abused by my work collegue whom also pushed me. I put a grievance in following which was upheld, yet I have still been kept off of work for a month so far until the situation is sorted, yet the other individual is still at work. I have been treated differently and even the manager has been treating me badly she doesnt even talk to me anymore as she is very good friends with the other individual and it is a small company. I have told my manager previously about other situations and she just laughs about it. I even put in a complaint previously about the way that I am treated at work which was simply ignored.

 

I have been off work since then, yes I still have not returned! although the other party involved put in a counter grievance and it was held that part of hers was also upheld (in that I had been hostile towards her) which is true although this is because of the treatment that I had received. I had since asked for the minutes and was told that I could not get them due to confidentiality. It was suggested that mediation should be taken in order to give the company feedback to which I agreed and the other party didnt. As this was not agreed to I said that I was not willing to go back to the workplace until mediation was sort as my workplace should be made safe. One of the board members suggested that I should just go back and see how it goes and that in his opinion we should both with draw our grievances.

 

As this was not a option I have now been offered a compromise agreement of £1000 which they say works out to be £406 pay in lieu of notice if I agree to end my contract and the rest a goodwill gesture and a extra £300 for legal expenses will be reimbursed, a reference and an input into a statement that would be relayed to staff. I am not happy with this at all and am not sure what to do. I did ask the individual who proposed this offer if there was any other option and she said no.

 

Please could you give me some advice as I am not sure what to do now.

[mariefab]

Is the 'go back and see how it goes' option still available to you? Or has this option now been withdrawn?

[honeyb1234]

Im not quite sure as when I asked if there was any other options she said no. I did ask when the return to work date was and she said the 2nd of September but shes hopes that the negotiation will be concluded before then, so wasnt sure how to take that.

[mariefab]

What do you think the response would be if you were to email them saying that, after consideration, you will return to work on their specified date of 2nd September?

[honeyb1234]

I dont think they will be happy at all

[mariefab]

Probably not, but do you think that they would accept your return to work?

[honeyb1234]

I cant be sure but I dont think so

[joesoap]

You're going to have to Email them and find out. If they don't want you there, it's possible they will increase the offer. What would you feel most comfortable with?

Edited August 22, 2011 by joesoap
spelling

[honeyb1234]

The did say they are willing to negotiate although the offer they gave is no where near the offer that I would accept. I am sick of getting harrassed I just cant believe that they can get away with dealing with the situation in this way.

[mariefab]

Indeed, what do you want to do? Because I can't see an obvious satisfactory solution for you in this situation.

 

Either you accept the compromise agreement, maybe negotiating a higher sum.

 

You return to work (if permitted) with the situation unresolved. In which case it's possible that your days would be numbered in that employment anyway.

 

You tell them that you'll return to work on 2nd September and they don't allow you to. In which case you have a potential ordinary unfair dismissal claim.

 

Or you resign and claim constuctive dismissal, as your title suggests.

Your difficulty here is that (setting aside that statistically constructive dismissal is notoriously difficult to win) I don't think you have sufficient grounds yet.

Your employer would claim that they completed the grievance(s) and asked you to return to work. You refused, and they couldn't leave things in limbo forever so they offered the compromise agreement as an alternative.

Edited August 22, 2011 by mariefab

[joesoap]

Aye well, that's companies for you. As they have already offered you a settlement it appears to me that they do not want you to put a claim in for Con Dismissal with the Employment Tribunal. I don't advocate bribery but push the "return to work" offer and see waht they come up with. If they make your life hell (not nice, I know) you still have the Con Dismiss option. I would listen to any advice mariefab offers to you.

[mariefab]

Do you have a figure in mind that you would accept?

I would expect, as a starting point, 1 week's pay for each complete year of the employment and payment for any untaken accrued holiday entitlement to date. Any additional 'goodwill' payment should indicate how badly they want to get rid of you/ not be sued/ end the situation.

[honeyb1234]

Well I know that I could work another years there and I also no that they have treated me badly which £300 doesnt cover

[mariefab]

It's perfectly understandable that you would feel that way. Sadly, treating employees badly isn't unlawful so there isn't always a remedy for this.

[honeyb1234]

Hi everyone,

 

I have been having alot of problems at work for around a year and a half and in March I was verbally abused by my work colleague whom also pushed me.

 

I put a grievance in following which was upheld, yet I have still been kept off of work for a month so far until the situation is sorted, for my own safety yet the other individual is still at work. I have been treated differently and even the manager has been treating me badly she doesn't even talk to me anymore as she is very good friends with the other individual and it is a small company. I have told my manager previously about other situations and she just laughs about it. I even put in a complaint previously about the way that I am treated at work which was simply ignored.

 

I have been off work since then, yes I still have not returned! although the other party involved put in a counter grievance and it was held that part of hers was also upheld (in that I had been hostile towards her) which is true although this is because of the treatment that I had received. I had since asked for the minutes and was told that I could not get them due to confidentiality.

 

It was suggested that mediation should be taken in order to give the company feedback to which I agreed and the other party didnt. As this was not agreed to I said that I was not willing to go back to the workplace until mediation was sort as my workplace should be made safe. One of the board members suggested that I should just go back and see how it goes and that in his opinion we should both with draw our grievances.

 

As this was not a option I have now been offered a compromise agreement of £1000 which they say works out to be £406 pay in lieu of notice if I agree to end my contract and the rest a goodwill gesture and a extra £300 for legal expenses will be reimbursed, a reference and an input into a statement that would be relayed to staff and a reference. I am not happy with this at all and am not sure what to do. I did ask the individual who proposed this offer if there was any other option and she said no.

 

I replied saying that I am not willing to take the offer and would just like to return to work in which she said that due to the tension it is not appropriate for me to return as there is tension and it is difficult to find a way forward. Thus in order to move forward I should give a indication of what I feel to be a fair monetary settlement.

 

Please could you give me some advice as I am not sure what to do now. I would also like to know if I have grounds to take them to a tribunal.