Suspended twice, re-instated twice

[shortwoman]

A friend of mine had problems with his employers where he worked as a Security Guard. He was initially working as a Security Guard in a retail store when he was suspended without pay in September 2010 for;

 

'Intimidation and harassment of a colleague', ‘Conduct in a manner likely to bring discredit to the organisation, customer or a fellow employee’.‘Not maintaining agreed standards of appearance and department whilst at work‘ 'Persistent breaches of company procedure’

 

After investigation the allegations proved unfounded and he was re-instated.

He was then promoted to Supervisor in a statitic position when he was suspended without pay in February 2011 for -

‘Conduct in a manner likely to bring discredit to the organisation, customer or a fellow employee’.‘Not maintaining agreed standards of appearance and department whilst at work‘ 'Persistent breaches of company procedure’

He attended a hearing and was subsequently dismissed. References were also drawn from his previous suspension and no mention was made that there was no breaches found. He consulted a Solicitor and appealed and after further investigation they stated that they could not find any 'continous breach of company procedure. He was re-instated however he discovered that he was demoted and also given a Final Written Warning. Following this he was informed that he would need to contact the Area Manager for his new contract and working hours, however after making contact with his, he did not receive his new contract and they failed to provide him with regular working hours. He was contact via phone to work shifts then the shifts were taken back from his and given to other colleagues.

My friend eventually became fed up with their treatment of him and handed in his resignation on 11th May 2011. In the letter he wrote the reason for his resignation and outlined the two suspensions plus

1. his previous shift pattern not being re-instated

2. receiving reduced working hours

3. being demoted from a Supervisor despite there being uninformed or no agreement made eg. signatory evidence of him agreeing to changes in his position or contract

4. not being provided with a new contract to state his position within the company

5. being given shift duties via telephone call / text messages a day before starting his shift and also being removed from shifts by the Regional Co-ordinator after stating that his shift was given to another colleague.

6. being given a final written warning despite being cleared of any misconduct.

Following receipt of the letter, he has been informed they have accepted his resignation and that the rest of the letter is being treated as a grievance and have requested that he attended a hearing today.

He would like to take this further and would like to know if he has a case for Constructive Dismissal, could anyone advise?

[Bigredbus]

On point No. 3... Demotion could be construed as an unlawful deduction from wages if such demotion isn't contained in his statement of employement particulars, contract or handbook of employment.

 

a) There has been a fundamental change in his contract... Was he made aware, at any time, after his disciplinary, that such changes would occur? -

[shortwoman]

He was not aware of his demotion and did not receive a new contract of employment and nothing was discussed with him upon his reinstatement.

[Bigredbus]

So, everything seems to have been done without his knowledge, or consent. That his contract has been altered without any agreement, and possibly his demotion being off internal policies...

 

It seems, upon reading your thread, that they behaved as such in 'revenge' to your friend having taken advice from a solicitor and, in some ways, humiliated management...

[shortwoman]

Hmmm....it sounds like it. He did not really want to leave the company but as he felt he was being treated so badly, he could not take anymore. Is this a case for Constructive Dismissal?

[Bigredbus]

Constructive dismissal is notoriously difficult to prove and the test is stringent, but he could have a case...

 

If,

 

a) the breach of contract is sufficiently important,

b) the breach is fundamental,

c) there will not be constructive dismissal, however unrasonable, if tere is an express contractual term allowing the employer to take such action (ref. change of hours, and demotion)

d) there has been a pattern of action, the most recent being the 'last straw',

e) the employee must leave in rsponse to the breach,

 

amongst other points to test constructive dismissal...

 

He has to goback to every document he possesses and verfy that his employer had no contractual right in taking such actions...

 

If he has the right, then your friend will not be able to claim and justify constuctive dismissal...

[Motorvating]

1, To change somebodies shift pattern, a business needs to consult with the worker. If the worker works the new shift, they have accepted the new Terms and Conditions, unless they have written to advise they are doing them under duress. If the changes have been made without consultation or agreement, they may have breached your terms and Conditions, failed in their Duty of Care towards you, failed Health and safety legislation, because new working patterns have to be accessed with the workers and may be the cause of constructive dismissal.

 

2, The contract states the working hours, and if they are going to be reduced they have to consult the worker. Just making the change without consultation and agreement from the worker could be a Breach of your Contract, and a cause for Constructive dismissal.

 

3, Again a change to your terms and Conditions without any consultation or agreement with may be a breach of your terms and Conditions.

 

4, The business has to supply a new or amended contract, but as you was not consulted or agree to the changes, they have not issued one, which is something they have to do.

 

5, this is a breach of Health and safety legislation as shifts have to managed in a certain way, so google HSE Managing Shiftwork

 

6, illegal

 

Your friend seems to have a stronger case for a Breach of Contract, but I would go for the Constructive dismissal as well. Your friend needs to attend the grievance to progress this further, and seek legal advice fro a solicitor who specialises in Employment Law, which I think would be heard in a magistrates court rather then a Tribunal.