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Hi all.

My other half is currently on sick leave and has handed notice in giving the minimal contractual notice. There has been ongoing issues with various staff members, which despite raising a grievance (currently postponed due to work related mental health, despite requesting reasonable adjustments) has had no choice but to resign. There are various issues, possibly too much to detail here, and with union unwilling to help, we have had to go it alone. The content of the resignation letter is for constructive dismissal, although a solicitor said they couldn't help,  possibly due to time/money. We have had to study employment law,policies e.t.c. and we understand what we have, also notice periods regarding such dismissal. Anyway, all that aside, recent communication has requested attending an emergency O.H. appointment on the grounds that other half may have resigned whilst absent and not capable of making that decision. I haven't stated the exact wording but it suggests that they are worried the decision has been made to resign may have been made without being of sound mind. We understand a resignation cannot be refused but are confused as to why this is happening, having had an O.H. appointment last week. Could this be stalling tactics and if so for what gain? Could this be there way of dismissal on the grounds of capability and if so why? 

Any questions and help greatly appreciated. I have used this website a couple of times in the past, (forgotten password and old email),with great help and advice given.

 

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Posted (edited)

Don't read anything into this. Until such time as notice expires, he is still employed under normal terms. Requesting OH is a sensible and standard approach given the circumstances. They wish to be assured that the employee wishes to resign and that this is not solely a result of their mental health condition, and something they might later regret having done.

 

I appreciate you haven't given many details, but you have given enough for me to be relatively confident that the solicitor is not saying they can't help you because of time or money, but because you have a poor case. The bar for constructive dismissal is very high. Very few cases succeed. You are incorrect in saying that he had no choice but to resign. He had the choice to focus on improving his health and then returning to the grievance. Given you are saying that he has poor mental health right now - albeit you allege that this is work related - it is entirely reasonable of the employer to say that they wish to postpone the hearing of a grievance until the lesson is fit to fully participate. Proceeding could cause further deterioriation in his health and that could be laid at their door if they proceed. So he had given them no opportunity to resolve the grievance, which is one of the first tests of constructive unfair dismissal - that the employee either has exhausted the employers internal processes, or that the beach is so serious and significant as to justify immediate resignation (clearly not the case here). 

 

I'm going to be blunt. "His union won't help" - or is that they don't think he has a case? "A solicitor won't help" - or is that that they don't think he has a case? Based on the information here, I think his argument is very weak - I would question whether he has a case. When everyone is telling you that they "can't help" it isn't sensible to take the approach that they don't want to, as opposed to the fact that your conclusions might be wrong. If you are simply aiming for, hopefully, some form of economic settlement prior to a tribunal, which some employers may pursue, then that is your choice (or rather, his choice) and risk. But be clear that that is what you  are doing. If you are aiming to win a tribunal, or if the employer isn't minded to settle first, please bear in mind that no matter what he is currently experiencing as a result of all this, that is nothing compared to the stress of a tribunal and the prolonged process it involves. That is regardless of all the actual "facts", none of which I know from this, but which will be used as mallets against your husband - if this gets into a tribunal, or even heading to tribunal, it will be no holds barred. And he will be the target of that. 

 

So I'm going to advise you to think very carefully about whether their ask is actually a silver lining and not a trap. He has the opportunity to withdraw his resignation, spend some time getting better and then go into a grievance process from a stronger position, health wise at least. I can definitely tell you that, from substantial experience, it is the grievance process that not only improves your chances of winning a constructive dismissal case (although the odds are still heavily against you), but also that it may actually help by providing you with confirmatory evidence to use. Again, those things are true regardless of whether or not I know the detail of his grievance. 

Edited by sangie5952

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