Constructive Dismissal

[TheUmp]

Hi all, this is my first visit

 

I have a 14 year old son who was recently diagnosed with Aspergers syndrome, which is a form of Autism.

He has obsessive tendencies, which is one of the symptoms, and as such 'demands' that I take him to his favourite places on a Saturday.

 

I approached my employer and asked for my hours to be amended to accommodate this and was open and honest and explained the situation fully.

 

They made me fill in the relevant forms, and then knocked me back, stating their reasons, all of which dont hold any water. They first claim cost when I proved that cost would be zero and also that they couldnt 'cover my duty' of a Saturday, when I have evidence that my job has been covered every time that I was off on holiday on a Saturday.

 

I have since become absent due to stress and anxiety and have attempted to contact my manager by email, requesting various documentary evidence that he claims to have to support him, but he has not answered three emails.

 

My simple question is, where do I go next?

 

Any help greatly appreciated

[honeybee13]

Hello and welcome to CAG. I'm sorry to hear of your problems, stress and anxiety are miserable, I know.

 

I expect the guys will be here over the course of the day, please bear with us until someone more knowledgeable than me comes along.

 

My best, HB

[lbruk]

Welcome to the CAG, sorry to hear about your troubles

 

OK, well the Equality Act is on your side. It is illegal for an employer to discriminate against someone who is disabled or "third party disability" its not stated as that in the Equality Act but I cannot remember the exact wording. The fact that your son has a known "disability" in other words he finds things harder than most people, means that you can request reasonable adjustments. Don't apply for flexible working, I think that is what you applied for, which they have every right to turn down.

 

Go back to them, state that under the Equality Act 2010, you are requesting reasonable adjustments to assist in the care of your son.

 

They cannot turn down your request, even if it costs them a little. If they turn down your request then they are guilty of Disability Discrimination. That should scare the crap out of them!

 

I will take a look and find the relevant parts of the act to quote at them.

[lbruk]

Discrimination by Association - thats the phrase i was looking for!

 

The concept of discrimination based on association and perception is not in itself a new concept and actually existed under case law, to a limited extent, prior to the introduction of the Equality Act. Most notably, the case of Coleman v Attridge Law and another [2008] extended the old legislation to cover associative disability discrimination. In the case of Coleman, the claimant, who was the primary carer for her disabled son, claimed that she had been treated less favourably on account of her son's disability and therefore discriminated against on the basis of disability. Crucially, the claimant herself was not disabled.

 

That should help you lots!

[TheUmp]

Thank you very much, that is a fantastic answer. I will get back in touch when I have presented this to my 'caring' employer

[lbruk]

Good Luck

[TheUmp]

If I were to resign or be made redundant and this was still not resolved, how would I stand on claiming Constructive dismissal? I know this may be jumping the gun a bit, but it could happen!!

[TheUmp]

Hi, I wonder if anyone can help me

 

 

I have applied to my employer to change my hours of work due to my son being diagnosed with a Disability and my need to care for him.

They refused stating nonsense reasons and are not responding to my emails either.

There are voluntary redundancies in the offing at the moment and my question is this:-

If I was to take one of these 'voluntary' options, could I then make a claim for constructive dismisal on the grounds hat I have been forced to take this option due to their intransigence in following the Equality Act?

[rebel11]

Hi TheUmp

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

 

Please let us know how your problem has been resolved, it could help fellow Caggers.

 

Thread has been moved to the correct forum.

[stu007]

Hi

 

This PDF from ACAS on may be of some help:

[Sidewinder]

Hi, I wonder if anyone can help me

 

 

I have applied to my employer to change my hours of work due to my son being diagnosed with a Disability and my need to care for him.

They refused stating nonsense reasons and are not responding to my emails either.

There are voluntary redundancies in the offing at the moment and my question is this:-

If I was to take one of these 'voluntary' options, could I then make a claim for constructive dismisal on the grounds hat I have been forced to take this option due to their intransigence in following the Equality Act?

 

Did you apply for flexible working using the statutory process or was it just done informally?

 

Did the employer give their reasons in writing? Are you able to give an outline as to what they were?

 

I appreciate that you have said they were 'nonsense reasons' but your problem is that it is only a right to ASK for flexible working, not that you MUST be given what you ask for. Providing that the employer's reasons for refusal are for genuine business reasons (and they may be many and diverse!) then they have satisfied their requirements.

 

The constructive dismissal option is an absolute non-starter. As previously stated, provided that they have satisfied their requirement, then they will have done nothing which could be construed as a serious breach of contract, which is a fundamental element of a CD claim. The fact that you may disagree with their reasons is sadly not sufficient. The Equality Act does not come into it - the legislation is S.80F of the Employment Rights Act.

 

If the statutory process has not been followed then you may have an argument and there is a right of appeal, after which if the reasons given by the employer are not justifiable, then you may go to an Employment Tribunal.

[becky2585]

There is theoretically the possibility of binging an Equality Act claim for discrimination by association, but as SW noted, there'd have to be unfair treatment and a genuine failure to consider the request.

 

Voluntary redundancy is still a dismissal in law, so you couldn't bring a constructive dismissal claim in those circumstances.

[TheUmp]

The employer gave me the reason that he thought that quality would be effected by way of nobody covering my 'work' when I was absent, but they are currently undergoing a complete change in everybody's work hours, so my request could easily be accommodated. I also have evidence (signing on sheets) that each time that I have been absent on the days requested, that my job has ALWAYS been covered by other members of staff. He gave me three options, one was getting 'someone' to cover my work on the day that I need and I do his work on another day, which can't happen because of working regs, the other was to break off from my work on a Saturday morning, go and care for my son, and then return to my work, which is a complete non starter due to Security reasons (Site would be closed when I return with my vehicle) The third option, he has not explained to me properly, but seems to suggest that I would pay someone to do my work (which of course is illegal).

 

The frustrating thing is that I am emailing him with various requests for informatiion and he completely ignores them; I have now forwarded all of the emails to his line manager to see if anything happens

[TheUmp]

Sorry, also forgot to mention that there is another employee who works on the same site who has the same circumstances as me and has been accommodated to a greater degree than my request. They know that I know about this as I informed them at my interview.

 

 

P.S I have made a formal request and been refused and am awaiting my appeal, they are not adhering to timescales!!

[TheUmp]

Hi all

 

Before I go on, I have already read many threads on the forum saying how difficult a CD claim can be, but here goes.

 

Ive been employed in a very large Comapany for 25 years (unblemished)

My son was diagnosed with a recognised disability in January

 

My request for a change of hours after full and honest disclosure about his disability, was refused due to quality and cost reasons

 

I am currently absent due to stress and anxiety (4 weeks and counting)

Manager ignores my emails on the subject; I emailed to say that I wished to appeal the decision, but nothing happened as yet (email sent 16 May)and no referral to OHS so far, although standards state that this should take place on day one of absence.

 

I am currently considering a couple of alternatives

1. Employment Tribunal

2. Another manager contacted me last Friday and offered me voluntary redundancy!! (I stated in a 1-2-1 a while ago that I would consider this)

 

 

If I took the VR, could I also pursue a CD claim?

Could I request the VR to be put on hold pending my ongoing ' hour change' request?

Could I just resign now and claim CD?

 

 

I have copies of the emails that I have sent to my line manager and his superior, and Ii have been attaching the emails that have been ignored to the newer sent messages

[Emmzzi]

Quality and cost are valid business reasons to refuse your request so I cannot see this succeeding as CD sorry to say.

 

So I think if your appeal fails you have 2 choices

a) find a way to work your contracted hours or

b) take VR

 

You can ask if they will delay VR and see what they say. Unless you have provided different ways the work could be covered in your appeal, however, I would not expect an appeal to succeed.

[TheUmp]

Emmzzi, the Equality Act states that any reasonable cost should be born by the employer.

I also have evidence to say that the cost would be a net of nil (too much to go into here), and that quality would not be affected, to which I have historical evidence to the contrary

[Emmzzi]

Did you put all of this in your request for flexible working?

 

"Reasonable" can vary greatly with employer size. Small family firms are not expected to do as much as say the council. Even if cost is not a factor if they assess quality as an issue then still no win.

 

Did you suggest a trial period?

[TheUmp]

My manager gave me the impression that it was a formality that I would be granted the change. There was never any conversation regarding a trial period. Indeed there is already a member of staff, with exactly my circumstances, who has been granted a more flexible work pattern than the one that I have requested

[Emmzzi]

you will see from this

http://www.direct.gov.uk/en/Employment/Employees/Flexibleworking/DG_10037051

 

that the onus is clearly on you to describe how the effects of the change can be managed.

 

Requests are judged in date order, not on respective merits. So even if other person has occassional childcare issues, and you have them daily, they do not have to revoke the other person's arrangements, or grant yours because you are "worse off."

 

I am sorry this will not be what you want to hear, but I always believe the right information is important in heping you prepare options.

[Emmzzi]

ps if you genuinely believe the impact on employer will be minimal - suggest that trial period now! 12 weeks would be common.

[stu007]

Hi

 

Have a read og this ACAS guide on flexible working:

[TheUmp]

Thanks for all of the advice, but I have discovered that the situation has now changed. Since my absence the employer has 'changed' the working hours of everybody, which is even wose for me!!(I have not had any consultation over this). This is going to have a serious impact on the whole of my working life, and I feel that I will have to resign now!!!

 

Please, some advice!!

[TheUmp]

Hi, I expect that this question has been asked in some form before, but I can't find any reference to it, so here goes

 

My wife works for a large religious organisation and has told me that recently about five or six members of staff were told that they would have to re-apply for their jobs. The staff all work in the gift shop and have varying hours ranging from 37 1/2 hours to 8 hours (1 day, being a Sunday). The shop has been selling well and is under no financial difficulties.

 

They all applied for their jobs and were told that they now had different hours, the most severe being the 37 1/2 was reduced to 24, and the 8 being given no job at all, (she has worked for just over a year).

One was actually increased from 19 to 25! and they didnt want the increase!

 

I think that the whole process is wrong but would welcome the views of the knowledgeable on here

 

Thanks in advance

[TheUmp]

Hi all, I have posted on here in the recent past and am just embarking on the road to an ET against my 'caring' employer, with the main claim being Disability Discrimination by association. I have legal advice from a legal employment law charity in my city, but have read somewhere that there are library books giving advice on Tribunal Tactics. Does anybody know the title of any of these books so that I can do some homework

 

Thanks in advance