Forced resignation upon me!

[pose1don]

my previous employer after a grievance I had with a supervisor told me I wouldn't have to work with the supervisor in question, then they went back on their word and tried to force me to work with him, I refused and walked out in a heat of the moment dispute with them. On returning to work the next day I was told by one of the managers that I had to leave the premises, but instead of being sacked they said my leaving was taken as my resignation. There where then letters being sent back and forth between us with me saying I didn't resign and they cant force a resignation on me. They are now trying to say that the manager said to me if I was to walk out he would take that as my resignation although it was more a threat of if you walk out we will get rid of you. They have concocted this resignation part to avoid going through a disciplinary process with me.

 

I have contacted acas and was advised that I cant be told to resign and that I would have to do this in the form of a resignation letter, or they could assume I had resigned if I had had no contact with them after leaving.

 

I am now in the process of taking them to a tribunal, and have chosen to represent myself as I cant afford a solicitor and legal aid doesnt exist any more. I'm also now working again for a different company so its difficult to get in touch with acas as they work the same hours as me and I have no holidays I can take.

 

I need to know what the law states on how they are putting forward that I resigned when I didnt.

 

I've been offered a settlement that is very low and I will be declining it, but I've no idea how strong my case is and what would be a decent amount to settle for?

[pose1don]

Just to be clear I'm asking if anyone knows if they are allowed to impose a resignation on me in the way they have, and is it wise toI be knocking back the initial offer?

[steampowered]

A resignation can only come from you. Any claim that the manager said they would take something you did as resignation is nonsense, you may refer to this case which confirms that http://www.bailii.org/uk/cases/UKEAT/2011/0593_10_2607.html

 

The issue basically boils down to whether a reasonable observer would think you have resigned. I don't think walking out of an argument in the head of the moment would normally be seen as a resignation, particularly if you turned up to work the next day.

 

It is impossible to comment on the likely award if successful without further details of length of service, time unemployed and your salary. You can calcuate the basic unfair dismissal award by following the formula which you can find online; and you would also get an additional compensatory award which would essentially be your salary until you began a new job.

[pose1don]

Hi thanks for the reply unfortunately the link you provided is broken do you have another link that refers to that case?

 

Also what am I aloud to post on here can I post all the information if I remove names so I can get some more detailed advice?

[honeybee13]

Hi thanks for the reply unfortunately the link you provided is broken do you have another link that refers to that case?

 

Also what am I aloud to post on here can I post all the information if I remove names so I can get some more detailed advice?

 

Hello there. Yes, you can post your story but don't include anything that would identify you or anyone else involved. And don't be rude about people.

 

HB

[pose1don]

This is where the case is as of today

 

from the Respondent:-

 

"Without Prejudice

 

I have taken instructions on the Claimant's decision not to put forward a counter offer. My client will not settle this matter for £4000. The facts are that the Claimant chose to leave his employment following his decision not to work on certain machinery. He walked out of work. There is therefore no dismissal in law. Under section 95(1)© of the Employment Rights Act 1998 an employee is dismissed if their employer terminates their contract (this did not happen) or if the employee terminates their contract in circumstances in which they are entitled to do so without notice due to the employer's conduct (again this did not happen, the Claimant chose to leave because he did not want to work on certain machinery. His reasons for not working on the machinery were bullying; these reasons were fully investigated and could not be substantiated). The Claimant cannot therefore have an unfair dismissal claim (as there was no dismissal) and his pursuit of this claim is unreasonable and puts him at risk of costs being awarded against him. A costs warning letter will be sent to him this week on this basis.

 

Even if the Tribunal decided that there had been a dismissal (I cannot see how they would conclude this), an employer is entitled to terminate an employee's contract where they have failed to follow a reasonable management instruction. If the Claimant was found to be unfairly dismissed on procedural grounds, the reality is that any compensation will be reduced due to the Claimant's actions in refusing to carry out a reasonable management instruction. The Claimant is highly unlikely to receive any compensation at all.

 

My client is only willing to settle this claim on a commercial basis i.e. to save their legal fees in defending the matter. Documents are to be exchanged tomorrow and once this preparation starts, they will no longer look at settling this matter. As a final offer they will:

 

- meet the Claimant in the middle at £3,000;

 

- provide a factual reference; and

 

- not pursue costs.

 

 

This offer is extremely generous in the circumstances and is not negotiable. If the Claimant chooses to reject the offer, the matter will be defended at Tribunal and costs will be claimed against the Claimant should he lose or should his compensation be reduced to zero if there is a finding of unfair dismissal on procedural grounds. We will advise the Claimant to take urgent legal advice on the costs warning.

 

The offer is open until 9am tomorrow morning and is subject to confidentiality, full and final settlement of all claims and without admission of liability."

 

 

My reply:-

 

"The facts are I had a grievance with a supervisor at work, I put in a verbal grievance to a manager and as a resolution to my grievance I was told once my work was finished I was to report to that manager and he would find me work to do in other parts of the factory, so I didn't have to work in close contact with the supervisor I had the grievance with.

 

On the day I ended up walking out, the reason was because the manager went back on his word and told the supervisor to tell me I was to work with him. I then approached the manager and asked why he had said that after he had already arranged for me to work in a different department that day to cover for an employee who had booked the day off as holiday, and his response was to throw his hands in the air and said talk to **** (his manager).

 

I then approached **** and asked if I could have a word in private, he then took me to one side and as I attempted to explain what was happening, the supervisor I had the grievance with interrupted the conversation saying I was refusing to work on the machine.

 

The facts are I was refusing to work with the supervisor, who I was told by a manager that I did not have to work with anymore as a resolution to the grievance I'd brought against him. It had nothing to do with working on a particular machine or doing any job I was capable of doing just to make that clear.

 

I was then told by **** I had to work on the machine with the supervisor, I then explained I didn't feel I could do that at that time with the escalating tensions between me and the supervisor and if I was forced to do that I would rather go home. I was then told if I was to go home I may not have a job to come back to, at that point in the heat of the moment I decided to walk out. After calming down over the weekend as this was on a friday, I returned to work on the Monday and was told I had to leave and was not allowed to return to the premises, I asked why and if I had been sacked and was told to ring up later to find out.

 

I then returned to home and rang work and spoke to **** **** (manager) who said he didn't know what had gone on and someone would be in touch. The next I heard was in the form of a letter stating that I had resigned from my job. I then sent a number of letters in which I explained the whole situation in detail and reiterated in each that I had not resigned. I had not verbally or in writing ever asked to resign from my position.

 

The facts are I was prevented from returning to work, I was not sacked by the company given any written warning or had any grievance procedures brought against me. The company is saying in their letters to me that the conversation with **** resulted in him saying to me if I was to walk out he would take that as my resignation, which I see as the company imposing a resignation on me. If it was my intention to resign I would have put this in writing to the company and would have not attempted to return to work the next working day or write numerous letters saying I have not resigned.

 

Therefor this is not a case of me being dismissed from my position as the company claims I resigned, the email states "an employer is entitled to terminate an employee's contract where they have failed to follow a reasonable management instruction" I don't see the way the management conducted themselves as being reasonable nor was the instruction to force me to work with the supervisor who they had already said I didn't have to work with anymore then threaten me to do it or possibly lose my job. I also find this statement strange as the employer is stating they did not terminate my contract that infact I had resigned (which I didn't)

 

I don't believe an employer can impose a resignation upon me, that has to be my own choice, and I think any reasonable person could see I didn't resign by reading the letters that where sent between myself and the employer, this is the reason I'm prepared to take this to the tribunal and is the reason I wont be accepting their counter offer of £3000 as my request for £4000 is more than reasonable under the circumstances. I'd also like to reiterate once again this offer is only open to prevent this going any further and to save both parties time and money and will be retracted if or when I have to invest any more time or money into resolving this claim."

 

To put the what I'm asking for into context my wages owed from the day I wasn't allowed back to work till the day I got a new job where in excess of £9000, my total claim is for £11,000. It would be very helpful to see that link if it still exists.

[billathome65]

Keep all letters and anything where they actively discuss what they will do or say to get rid of you.

 

Not knowing the details of the walk out all I will say is that they can state you went AWOL which should be dealt with under the absence procedure and fairly look at the reasons behind you walking out.

 

He said, she said he said are all hearsay and should you feel that they will say they heard him say ( if you walk out I'll take it as your resignation ) Then you need to call their impartiality into question. If you ain't in a union contact ACAS for further advice.

 

Regards Bill

[SabreSheep]

OK going to play devils advocate here. You need to know the weaknesses of your case so you can fully evaluate your chances and thus whether or not their offer is a good one.

 

Beware the test of reasonableness

 

Reasonableness simply equates to "Would another employer do the same" That area of case law is very weak. What is reasonable to you does not matter in the tribunal.

 

Your agreement was verbal not to work with the supervisor. You need to be aware they can simply deny that agreement was made.

 

Your grievance you stated was verbal too. Again, harder to prove.

 

Evaluate you case from a factual point of view. EG FACTS that CAN be presented to a tribunal and evaluate your options.

 

IF you had walked out and followed up the next day with a letter of grievance that would have put you in a stronger position.

 

Think very carefully about their offer. Seek proper legal advice is also recommended.

[billathome65]

OK going to play devils advocate here. You need to know the weaknesses of your case so you can fully evaluate your chances and thus whether or not their offer is a good one.

 

Beware the test of reasonableness

 

What is reasonable to you does not matter in the tribunal. Never a truer word was spoken

Your agreement was verbal not to work with the supervisor. You need to be aware they can simply deny that agreement was made.

 

Your grievance you stated was verbal too. Again, harder to prove. ( He said She said = Hearsay )

 

Think very carefully about their offer. Seek proper legal advice is also recommended.

Amen!

[SabreSheep]

recentish case where the band of reasonableness case was upheld against the employee

 

Band of Reasonable Responses’ Test is Human Rights Compliant

 

07 January 2013

 

Novel arguments that the ‘band of reasonable responses’ test used in the determination of unfair dismissal claims should be strengthened in order to comply with human rights legislation have been rejected by the Court of Appeal. The Court found that the test of ‘proportionality’ applied under human rights law was essentially the same as the test used by an Employment Tribunal (ET) when deciding whether or not a dismissal was justified (Turner v East Midlands Trains Limited).

 

Ms Turner worked as a senior train conductor for East Midlands Trains Limited. She was dismissed for alleged petty pilfering and argued that the consequences of losing her job, in middle age and after 12 years of unblemished service, were so serious that it was not enough for the ET to ask itself whether her dismissal was within the band of reasonable responses open to a reasonable employer in the circumstances. There was no direct evidence that Ms Turner had engaged in wrongdoing and the case against her relied on statistics and inference.

 

It was submitted that, in those circumstances, the ET that heard her case should have gone on to consider whether her dismissal was ‘proportionate’ within the meaning of Article 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life.

 

Ms Turner’s unfair dismissal claim was dismissed by the ET and the decision was later upheld by the Employment Appeal Tribunal (EAT). The EAT ruled that the investigations carried out by East Midlands Trains Limited had been adequate and fair and that Ms Turner’s human rights were therefore not engaged.

 

Dismissing her appeal, the Court of Appeal ruled that the band of reasonable responses test laid down by Section 98 of the Employment Rights Act 1996 is ‘catholic enough to accommodate whatever standard of due process Article 8 calls for in a particular case’. Human rights legislation added little to the domestic test, which requires the ET to ‘invigilate the employment relationship by requiring the dismissal process to conform to a standard of fairness calibrated, among other things, to the grounds and consequences of the threatened dismissal’.