Help with employment issue please!

[moon2013]

I've been reading a few posts on this message board and the replies that they have attracted, and it seems like many of the posters are extremely knowledgeable about employment law and i am hoping that i can get some assistance.

 

Until 3 weeks ago i worked for a major supermarket, as a part-time employee, working two 6 hour shifts a week. I began working their in 2010.

 

My working hours fell on a Saturday, and since i was due to begin a educational course part-time which fell on that day, i could no longer work that day and therefore required a change. I wrote a letter to the manager explaining the situation, and requesting a change from working Saturdays to Sundays instead, with the working hours being 11-5.

 

I submitted this letter to the manager and a few weeks later verbally asked her the status of my request, at which point i was told that she agreed to my request but that the paperwork regarding the change would be sorted out by her deputy manager. A few days later the deputy manager had a meeting with me and told me that my new working hours would be Sunday's 11-5.30 and that i should sign to confirm. I stated that there must have been a mistake as i specifically requested the working hours of 11-5 on sundays, and from my previous experience at another branch of the company this was the standard working pattern, and in any event if i worked the hours as stated i would be taken over my weekly contract hours of 12 a week.

 

The manger stated that i would not be taken over the contract limit as i would be taking a 30 minute unpaid break during the sundays shift, and that it was standard practice in this particular store for employees who work on sundays to work 11-5.30 and that it was just not possible for colleagues to work on Sundays without having to take a 30 minute unpaid break. Faced with this advice i signed the change of hours.

 

Since then i gradually discovered that the information given to me to induce me into changing my working hours was untrue. In the first place, i discovered that there were several colleagues who worked 6 hour shifts WITHOUT having to undertake a 30 minute unpaid break as i had to, and those who took a 30 minute break were given a choice between having a 30 minute unpaid break OR simply working a 6 hour shift. More importantly, recently i found an advertisement that the company had placed for staff working in the same role as me, who would have to work 6 hours on a Sunday WITHOUT having to take a 30 minute break- the very shift that i was told did not exist. In fact, the working hours for Sunday that was advertised was the arrangement that i originally requested in my letter.

 

In addition to the above issue, on the date that i signed the change of working hours, i asked the manager on what date the change would take effect i.e. what would be the first Sunday that i would have to come into work instead of the Sunday? The manager told me that it would be, say the 10th of Sep. However, this was untrue; the change was actually due to take effect on the 1st of sep. Since i obviously did not come into work on the 1st of sep, i had 6 hours salary deduced from my wage for that month, and since i did not come into work on that day another manager wrote down on the daily schedule (which is visible to all staff members in the building) "X not turned up to work again!!". I have never simply never not turned up to work, and to do so counts as gross misconduct as outlined in the employee handbook. The dates listed are not the actual dates, but just to make the point that i was actually due to be in work on a date earlier than the one that i was told.

 

Due to the above two issues (there are a few others which i have not mentioned as i dont want to make this post unnecessarily long) i submitted a grievance. While the grievance was being investigated, i expressed to my manager (who told me that i have to take an unpaid 30 minute break on sundays/and who also told me the wrong day to come into work) my displeasure at having to take a 30 minute unpaid break, and my confusion since the hours that i requested were being advertised by the company. This conversation escalated into an argument. In an attempt to defuse the situation i stated to the manager that i would rather that our interaction from now on remain professional, and that i would prefer it if he did not attempt to discuss personal issues with me, as i did not feel comfortable having to engage in trivial discussions with an individual who i felt was mistreating me. As i was stating this to him another manager walked over, and at hearing my statement she burst out laughing. As she was laughing, the manager who i was initially speaking to looked at her and he burst out laughing, and both of them continued laughing. I felt demeaned by his reaction to what i thought was a serious issue, so i stated "i dont understand why your laughing, its not funny". To this the manager replied, in front of the other manager, "im laughing because what you're saying is funny". At this point i felt even more demeaned and upset, so i walked away. 10 minutes later i ended up walking out of my shift early, and i phoned the store manager the next day to tell him what had happened, that i was upset and that i would not be returning to work. I posted my written resignation to the store a few days later.

 

1 week later i was invited in for a meeting to discuss the outcome of my grievance. My grievance was rejected; i was told that the manger made a mistake in not offering me the option of not having to take a 30 minute unpaid break on sundays, and that regarding him giving telling me the wrong date to come into work on, that was also a mistake. For these reasons the company rejected my grievance. Interestingly, they stated that they would give this manager some guidance on the break situation on Sundays, which i do not understand as he is shortly due to move within the company into a new office position, which is not management. Regarding the laughing incident (the final straw) the manager stated that he had looked at the CCTV cameras to see the incident that i mentioned (i.e. both the managers laughing) and he stated that it just so happened that the spot that we were standing at was not covered by any CCTV cameras, and so therefore he could not see anything. I know for a fact that this is untrue as it would be impossible for the company to have CCTV's covering the shop floor, but the spot that we were standing at (next to a checkout till) would not be covered by a camera.

 

In summary, my questions are, from reading the above, do you think that i potentially have a claim for environmental harassment and constructive dismissal? Also, in relation to calculating the level of compensation, how should i go about it? I am going to try and attempt pre-claim mediation through ACAS with the company, do you have any suggestions as to what i should state to the ACAS advisor to tell the company? The company are extremely arrogant and have previously ignored all of my warnings that i am considering taking this matter further to an ET.

Edited January 6, 2014 by ims21
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[renegadeimp]

Are you in a union? If so, have you spoken to your rep. For supermarkets it is normally USDAW.

 

As a side note, i think your decision for legal action for the choice syou stated are pretty much a dead end.

[moon2013]

I am a member of UNITE union, but the union rep has stated that he does not know what i should do. From previous experience he has not been of much help- he even gets Xmas presents gifted to him from the manager of the store! I suppose that i might have to try and go above him, but when i asked him for a name of who i need to speak to he said that he was unsure as he was told that it was always best to resolve issues instore!

[Emmzzi]

"environmental harrassment" is a new one on me.

 

a) you requested the change. They can advise what the shifts are and if it's split shift. You agree or you don't. You signed, therefore you agreed. If there were new shifts available later I'd have been inclined to apply for them.

 

b) Did you work Saturday 31st October?

 

c) I can only guess his colleague laughed because your statement, if you delivered it as written here, sounds a bit pompous.

 

Seriously, I think you've gone in too heavy handed and blown this all out of proportion.

 

I'd save yourself the hassle of an ET because your case is very weak. I think you need to learn to recognise when someone is doing you a favour, and to deal with things with a lighter touch.

[moon2013]

Advice from anyone from an employment law legal background would be appreciated.

[Emmzzi]

Advice from anyone from an employment law legal background would be appreciated.

 

I'll just slink over here then, shall I?

[moon2013]

If you've never heard of environmental harassment before i would assume that you do not/have not practiced as an employment lawyer. Therefore the legal aspect of your advice is limited, although i am grateful for a different perspective.

[Emmzzi]

I am aware of "hostile environment" harrassment. "Environmental harrassment" isn't a thing.

 

I really wouldn't be so curt with people whose backgrounds you know nothing about. But then, as you seem determined to ignore my advice, I shall leave you to it. Good luck!

[moon2013]

Thank you for your view (genuinely), i will take it into account, although i think sarcasm (regarding your question b) is unnecessary.

Edited January 5, 2014 by moon2013

[honeybee13]

If you've never heard of environmental harassment before i would assume that you do not/have not practiced as an employment lawyer. Therefore the legal aspect of your advice is limited, although i am grateful for a different perspective.

 

Hello and welcome to CAG.

 

You probably know that we are a voluntary forum here and that people give their time for free. You will get a range of different views, but we can't guarantee that an employment lawyer will reply. It is of course your option whether you accept the advice or not.

 

I do know from being on this forum for a while that constructive dismissal claims are very difficult to win. The common figure quoted for successful claims is 3%.

 

My best, HB

[renegadeimp]

Just to let you know, emmzzi is one of the most experienced people on this site in regards to your issue. I would seriously listen to her advice.

[moon2013]

I have already stated twice that i shall be taking her opinion into account. Is this not good enough? Or am i obliged to adhere to her opinion?

[stu007]

Hi moom2013

 

Can I ask why you have edited and removed your 1st Post?

[renegadeimp]

You arent obliged to adhere to anyones opinion. however it seems you are ignoring the advice given, pretty much because it isnt the advice you want to here.

 

Emmzii is pretty much straight to the point in all the advice she gives. But she's dead on with it.

[moon2013]

Thus far the majority of responses have been either sarcastic or illogical. Therefore i do not think that there is much to be gained in terms of advice, can you please therefore delete the post?

[Sidewinder]

Just to let you know, emmzzi is one of the most experienced people on this site in regards to your issue. I would seriously listen to her advice.

 

Seconded. I would also concur with Emmzzi's assessment of the strength of your case. Environmental Harassment would come under the concept of discrimination, meaning that the employer set out to make the workplace intimidating to your sex (for example) and I see no evidence of this in what you have stated.

 

Constructive Dismissal would be a more realistic allegation, but how would you set out to prove this? There is a less than 3% success rate for such claims, and I don't see how you would be able to evidence the claim. Whilst it is clear that you have been treated badly - even disgracefully - the employer has already stated that the act of belittling you and not treating you seriously was not captured on CCTV - you can argue until you are blue in the face that it was, but once any footage is erased, it is gone forever. I would also doubt that there is any documented evidence of your having been mistreated. Were there any independent witnesses who would be prepared to give a statement?

 

You could perhaps use the fact that there was an acknowledgement of incorrect procedures being used, and that an element of retraining was required, however this seems (from your post) to have occurred after you left? Any CD claim would require you to prove that the actions of the employer were so serious as to break the fundamental trust of the relationship to the point that you were unable to face working there again, and I do not see your case being anywhere near strong enough for that. You left before the outcome of the grievance was known, and I feel that an opportunity was missed to resolve this without you leaving.

[Sidewinder]

Thus far the majority of responses have been either sarcastic or illogical. Therefore i do not think that there is much to be gained in terms of advice, can you please therefore delete the post?

 

It is unfortunate that you should feel that posts were sarcastic or illogical - in matters of law it is sometimes necessary to be a little blunt when it seems that somebody may be about to waste a lot of time and emotion on a case which has little or no merit.

 

We regret that posts are not deleted routinely as each stands to possibly help others in similar circumstances in the future.

[moon2013]

Thank you for your post, which i have found to be constructive, unlike some of the other posts so far. I am willing to accept advice that is blunt, however sarcasm is not appropriate, even more so when individuals are coming onto this message board to seek constructive advice. If i knew that there is an expectation for me to accept a singular opinion, rather than consider a range of views, i probably would not have posted originally.

 

I wrote in my original message clearly that there are other issues that i have not mentioned, and there are particular incidents that i am legally not allowed to discuss; hence my discussion of environmental harassment.

 

In any event, thanks for your help!

[Sidewinder]

Just be aware that Environmental Harassment is only an aspect of wider discrimination covered by the Equality Act - it does relate to dignity in the workplace but would not be a valid claim for its own sake, hence why it is not generally recognised.

 

As previously stated, we have many people willing to offer advice on a particular subject - and a Sunday night would not be time when most people are about, however the first two responses were constructive, and if sarcasm were evident it is probably mostly so in your Post #5 which I saw as being rather a slap in the face to somebody with an extensive knowledge of employment matters.

 

I wish you well with your case.

[renegadeimp]

Thus far the majority of responses have been either sarcastic or illogical. Therefore i do not think that there is much to be gained in terms of advice, can you please therefore delete the post?

 

Sarcastic or illogical? i dont think you know the definition of those words. Nobody here has been sarcastic to you, and No advice given to you was illogical.

 

 

Anyway, you are wholly within your rights to take any advice you want. All we can do is offer our opinion and let you make the final decision.

[stu007]

Hi moon2013

 

As has been pointed out already all the caggers on CAG are voluntary and give there time and advice free. You will get a variety of different views but ultimately it is up to you how you wish to take or use that advice.

 

So far I have seen no posts that have been 'sarcastic' or 'illogical' from those that have responded to you or that breach our forum rules (please see below).

 

Could I suggest that you just take a step back and just think about the advice given so far and take a time out to think about it and come back afresh tomorrow rather than feel the way you do at present.

 

I hope you don't mind me asking but where did you get the advice on 'environmental harassment' before asking here.

[renegadeimp]

I think he means hostile environmentel harassment.

[steampowered]

Just to add my voice, unfortunately I also do not think there is a viable claim here.

 

Environmental harassment is not a stand-alone concept. It is really a way of making a sex discrimination claim. I can't see any viable discrimination argument here, as there is no relevant 'protected characteristic' within the meaning of the Equality Act 2010.

 

I also do not think there is any constructive dismissal. For constructive dismissal you would need to prove that the employer was acting in breach of contract and that this was serious enough to force you to resign. In order to be forced to resign you really need something extremely serious, such as not being paid or intense bullying. This is quite a strict test and failing to meet it is the reason why constructive dismissal claims have a very low success rate - choosing to resign because you have been treated badly simply is not enough.

 

In this case, I don't think being laughed at by a manager is enough to constitute constructive dismissal. It just is not serious enough to constitute being 'forced' to resign. As it was your choice to resign I don't think you have any claim regardless of whether you were treated unfairly.

[ericsbrother]

You are a member of a union so get your rep to contact the Full Time Officer covering your branch. They have a vast amount of experience and resources that far outreach those of lay reps so they will give you better help and advice on your position. They may well have had dealings with your managemnt before and will know who to talk to and get the best outcome. Do not set off down a path that has only one destimation.

[smokejumper]

Do you have in mind what outcome you are looking for, don't see a lot of money in this claim ( even if there is one ).

 

Sometimes it's not worth the bother and stress, just to prove a point.

 

I see you mention other issues, but with all due respect, you need to be thicker skinned and not let idots bother you, give them more stick back.