Unfair, Wrongful or Constructive dismissal?

[lindyhop]

Thanks Becky

 

point taken, never had to do this kind of thing before so its good to know, and may also help other Caggers following this thread.

 

i will put forward a counter offer in an additional paragraph at the end of the letter.

 

Thanks again

 

Lindyhop

[lindyhop]

update on ill health early retirement.

 

in my case (outcome of which may be helpful to other caggers in sim. circs.) because i am not in a pension plan with my current employer i would have to look to any former pensions i have and their qualifications rules.

 

however if i agree to leave and dip into my former pension (and i do apparently have a choice whether i want to or not) this lets off my employer where constructive dismissal is concerned because i would have agreed to leave on ill health grounds - there is no way on this earth i am agreeing to that and make things easier for the very same employers that have brought me to this sorry state.

 

in addition if i tap into the pension i have now (with former employer) at proper retirement age i get the pension at a lesser rate because i would have dipped into the scheme now for a temporary period of up to 3 years.

 

im suffering severe depression not madness.

 

my employers (apparently) do not have any insurance that they could refer to for employees in my type of circ where ill health early retirement is being reccomended.

 

the option of ill health early retirement didnt work for me but may work for someone else.

 

add on

 

i was advised that if i had joined the scheme on my return to work after long term sick and had paid into the scheme for a minimum of 3 months i would now have qualifed for it.

 

anyone out there not in their companys pension scheme and returning to work after a sick period may want to seriously consider joining the pension scheme (on their return) after first establishing the qualifying rules - you never know what is waiting around the corner for you where illness is concerned.

 

Regards

[assisted blonde]

Could your current employers not offer a compramise agreement to speed things up, this would have to be looked over by your soliocitor before you agreed to it but your employers would pay the reasonable costs of your solicitor.

[beachblue23]

Sounds like a letter to put the frightners on, are you representing yourself by any chance?

[lindyhop]

Hi Beachblue,

 

yes i am, can you tell:-) its a question of money, i dont have any, but i dont qualify for any help either, so i have to take this as far as i can by myself.

 

i am aware from other threads on here that employers solicitors or employers themselves will try all sorts of tricks, but do you know, i have until just recently assumed that they would be fair - from my experience now and reading others experience, not a chance of fairness - fairness would appear not to come into it!

 

its a steep learning curve, and so much of it unnecessary.

 

regards

[lindyhop]

Hi AB

 

i think this may be the next stage. at the moment it is a case of wait and see. i will be submitting my questionaire next week in any event.

 

Regards

[beachblue23]

I had to do a similar thing for the same reasons and was shocked by some of the things that were said. In my experience, dont over think what they say, they get paid to scare us off really and save their client money. When I was going through this I found ACAS a lot of help, are you using them already or literally doing it all yourself?

[lindyhop]

Questionaire question

 

who do i address the questionaire to? just the name of the company or do i need to identify a particular officer ie head of HR?

 

Thanks

[lbruk]

Just put Head of HR?

 

Or your line manager

[lindyhop]

ibruk - thanks for that. will do. what is the minimum time i have to give them for a response? can i request that they respond within 14 days? i need to get my ET1 in pretty soon and would like to have the time to review their answers prior to submission.

 

regards

[lbruk]

14 days is reasonable

[Browncow]

ibruk - thanks for that. will do. what is the minimum time i have to give them for a response? can i request that they respond within 14 days? i need to get my ET1 in pretty soon and would like to have the time to review their answers prior to submission.

 

regards

You can ask them to do it within 14 days but they are not obliged to return it for 42 days (6 weeks). The Respondent is unlikely to comply with any timeline you set so I think you will have to proceed with ET1 without benefit of the questionnaire answers.

[lindyhop]

christ as long as that. Ok will have to proceed without.

 

Thanks again

[Browncow]

christ as long as that. Ok will have to proceed without.

 

Thanks again

Get it off to them anyway it is all part of the routine. Do not worry about not having their reply as it would probably been "sheet", as they say in Spain.

[becky2585]

They actually have 56 days to reply to the questionnaire by law. However, their response could effectively be seen as a final act of discrimination which could extend the time limits. My advice would be to issue protective proceedings, as only the discrimination point can be extended by an ongoing act and any other claims would therefore be out of time. You can always issue a brief ET1 and deal with the questionnaire in evidence later on.

[lindyhop]

Hi Becky

 

not familiar with the term 'protective proceedings' i will google. in the interim i plan on issuing the ET1 in a couple of weeks, are they one and the same?

 

as an update, there was an issue about being out of time with my case. however i suffered extreme victimisation from a high placed manager after putting forward my grievance on my return from sick leave, it is my understanding that this act (plus some lesser ones) has hopefully brought my case back within time - however it will be for the ET1 court to determine whether or not this is the case. my employers are relying on the 'out of time issue' and using the time issue to try to put me off carrying through with the ET1

 

it is interesting that the employers response could be deemed discrimination as well. i will be reading the response very carefully indeed.

 

Regards

[lbruk]

you need to file the ET 1 asap, they have 28 days to reply to that anyway.

 

the questionnaire isn't something that you need to have done before the ET1 is filed.

 

Your ET1 has to be set out in a non-emotional way and clearly set out the facts of your claim for the tribunal to understand, no emotion, write it so a stranger can understand what has happened to you.

[lindyhop]

Hi

 

i need a point of clarification please.

 

i am having to leave my job on grounds of health. my medical team and my employers Occ Health made the reccomendation that i need to leave to enable me to get fully well. the term used by one of my medical team is that my current workplace is 'toxic' to me, and my condition has been caused by my employers and or their acts.

 

my job proformance is not an issue. this has been medically confirmed, and my employers can find no fault with my performance.

 

if i leave becasue of these conditions it could be classed as constructive dismissal(?) breach of contract by employer etc. but this can be hard to prove i understand, even though i have medical reports to back me up.

 

however if they make me leave or suggest i leave is this unfair dismissal? wrongful dismissal? they cannot make me redundant (i dont think) as they will be replacing my post with another person(basically have already)

 

or will it not come under any term because they are accepting the Occ Healths advice that this particular workplace is the problem and not me, therefore they should let me go.

 

i just want to be clear.

 

i've heard mention by a work colleague of something called a 'managed exit' is this the same as being sacked?

 

thanks

[maroondevo52]

Hi, lindyhop.

 

I've moved this thread to the appropriate Forum, please continue to post here regarding this issue.

 

Thanks.

 

Scott.

[lindyhop]

Thanks Ibruk, will do.

i did try to do this with the questionaire, which i think was a good practice run, and will base the majority of my ET1 on the questionaire para 2. i will have to get this done and reveiwed and submitted by next week.

 

i will remember the point about 'emotion' and steering clear of it with the ET1

 

Regards

[lbruk]

If you resign because you feel that you have no other choice but to - then constructive dismissal maybe an option (but is a pain to prove)

 

If they dismiss you for an unfair reason, then it is unfair dismissal.

 

It depends on what happens next to be honest!

[lbruk]

the questionnaire can be full of emotion - lol - it goes to your employer who knows what happened and the decisions around your employment.

 

Just think when you write the et1 that a stranger needs to read it - a very lawfully qualified stranger!

 

writing the ET1 you need to maybe get some professional advice on writing. But make sure you get it in on time. There is nothing wrong with a personally written ET1, but the Tribunal will want to read something laid out correctly, easy to read, lays out the issues in a form they can understand and read in 5 mins and understand the problem.

[Sidewinder]

I think it is impossible to say from your post. The response above is about as much as can be given from the information available.

 

If you were to allege Constructive Dismissal, then you would have to prove behaviour on the part of the employer that was so serious that it completely undermined a fundamental term of your employment, and you would have to exhaust the grievance process.

 

Now if you have been off on long term sickness, then your employer could dismiss you on grounds of capability - a potentially fair reason for dismissal, and providing that they do this correctly, then it would be lawful - that would be a managed exit, as would a compromise agreement offering perhaps a payment to leave and not take action against the employer in the future.

 

An Unfair Dismissal would be where the employer dismisses you without just cause, or for a reason where dismissal was not a reasonable action in the circumstances.

 

IF you claim that the sickness has been brought about solely due to the behaviour of your employer, then they would be expected to investigate that allegation and present you with the outcome. At that point, it MIGHT be possible to resign and claim that a Constructive Dismissal has occurred on the basis that the employer has made it impossible for you to continue in your job, BUT you have to be very sure that this is the case, and have solid evidence to back it up. Legal advice is a must, as CD is very difficult to prove, and if you fail then you have resigned from the job with no compensation for doing so.

[Sidewinder]

Sorry - just realised that this is connected with your other thread http://www.consumeractiongroup.co.uk/forum/showthread.php?341475-Psychiatric-Injury-and-civil-action(-)

 

Do you want the two threads merged to avoid further confusion?

[lindyhop]

Hi

yes it. might be useful to link it all in.

 

thanks for the responses, its giving me extra to think about now. CD, have to think if i have enough, if all the medical i have is enough. 3 letters now stating to the employer 'its the workplace' and not an issue of my capability.

 

will sleep on it.

 

Thanks again