Constructive unfair dismissal from a uni

[agy100]

Greetings to everyone!

 

I have read some very helpful threads on this forum on constructive unfair dismissal (CUD) in preparation for my own case. I am keen to share my ongoing case so that, hopefully I can get help and support from you guys, and at the same time, other people might find my experiences with ET useful.

 

Some basic info first:

 

I had been employed FT in a uni in Scotland as a lecturer for over 7 years. I had to resign from my job in Feb 2013, essentially due to bullying by my Head of School aggravating my stress/depression, and the failure of the snr management to deal with my allegations of his bullying and refusal to adjust my contract despite medical evidence. I filed a CUD case on 22/5/13, and currently a case management discussion (CMD) is scheduled for 22/8 - only one day away now!

 

Fashioning after one of the previous cases found on this forum, I have prepared an "Issues for the court" doc as follows:

 

--

1) Did the Respondent breach the implied term of “trust and confidence” in: a) Failing to consider my health conditions when dealing with my request for 50% contract change, both in May/June 2011 and August/September 2012?

b) Failing to make reasonable adjustments to my contract given my medical conditions?

c) Failing to follow internal procedures when dealing with my allegations of bullying by my manager?

d) Failing to follow internal procedures when conducting a disciplinary investigation against me?

And if it did:

 

2) Was the claimant constructively unfairly dismissed as defined by the Employment Rights Act 1996 section 95 (1) c?

--

 

Of course, the above only provides a glimpse. I will try to provide more details later when I get time. But in the meantime, I would appreciate any opinion whether the "Issues" above appear more or less at the right level of details.

 

b) might appear to be repeating a) but it does highlight a different aspect ("make reasonable adjustments"), or am I reading too much into it?

 

Any comment is appreciated - thanks in advance!

 

AG

[agy100]

To give further background info, here is an anonymised version of my claim statement in ET1 to the Tribunal:

 

--

1. I had been employed in the University as a full-time Lecturer from April 2005. I was suffering from work-related stress and I had to go to my Human Resources (HR) advisor in March 2011 to express my concern on health and enquired about a 50% contract. I highlighted my concern to my manager the Head of the School (HOS). The HOS dismissed my stress concern and contract change request, and pressurised me further (May/June 2011) with regular reviews. Even with regular reviews agreed, he demanded extra meetings without giving reason. I had to fend him off by pointing out his bullying behaviours (01/07/11 and 28/10/11).

2. Though I expressed a clear wish to HR about raising a formal complaint (31/10/11) about his bullying behaviours, the HOS instead set up an investigation into my allegation of his bullying and at the same time, started a disciplinary investigation on my "conduct" (15/11/11). A prolonged investigation on bullying took place, but no meeting record was kept when interviewing a key witness I introduced. Despite complaints by other colleagues about the HOS at the same time, my complaint was dismissed by the senior management, first by a Deputy Principal (28/01/12), then by a Senior Deputy Principal (19/04/12), and finally by another Senior Deputy Principal (06/08/12). To me the bullying investigation was deeply flawed as it was launched by the offender himself against internal procedures, and no meeting record with the witness was created.

3. While the HOS announced his departure from the University in late August 2012, I discovered that my grievances were far from over. As one Senior Deputy Principal was appointed as the interim HOS, I renewed my request for 50% contract change primarily for the health reason. In a meeting on 09/10/12, the interim HOS turned down my request on “operational reasons”. In addition, I was told that the disciplinary investigation on my "conduct" the former HOS initially set up was to be re-instated. My previous relevant meeting on this subject was on 23/01/12 and I had not received any update for over 8 months. This re-instatement was a shock, and was totally unjustified. What was left of my trust and confidence with the University was destroyed. In response, I resigned from my position (11/10/12). There was no effort from the management to retain me in any way whatsoever, despite the resource considerations cited to deny my contract change request in the first place.

4. In summary, my case is based on: 1), the employer's unwillingness to heed my complaint of work-related stress; 2), not supporting me sufficiently on my rights to complain against my manager's bullying, as a result denying me of a formal complaint opportunity, and suppressing relevant witness evidence; 3), violating its own internal procedure on communicating disciplinary investigation results within prescribed days and re-instating an investigation by total surprise. These events together destroyed my trust in and confidence with my employer, and led to my resignation. Therefore I contend that I suffered a case of constructive dismissal, which was unfair as it was achieved by the employer neglecting its duty of care and violating its own procedures.

5. There is an additional piece of supporting evidence about my claim after my contract ended in February 2013. Before I left my position, my working colleagues asked me if I would be interested in becoming a "recognised teacher" or "teaching assistant" over the summer months to supervise Master dissertations. I was indeed very keen on this. However, when I queried on the status of this application in April 2013, I was informed that the management refused the application without an explanation (17/04/13). One of my colleagues wrote to me afterwards (26/04/13) that there was "definitely" work to be done and other far less qualified people were employed. I consider this otherwise inexplicable management decision as another piece of evidence in support of my constructive dismissal case against my former employer.

--

 

Question: Any initial views on how strong the case is?

[Conniff]

Did you put your complaints in writing at the time ?

[dj1971]

Hi Agy100,

 

I am a bit confused. Firstly you say you resigned in Feb '13 then in post no.4 you say you resigned 11/10/12. Which is it?

 

This is very important because of the restrictions on how soon after resignation you must submit your ET1.

 

DJ

[agy100]

Hi DJ,

 

I resigned on 11/10/12 and left the job in Feb 2013. This type of delay is usual in the university sector as there is always a long notice period (3 months minimum) for teaching arrangement. Thanks for picking this up and sorry for the sloppy use of words. I will amend the papers accordingly.

 

In a previous case Buckland v Bournemouth University [2010], the claimant resigned in Feb, and left in July. ET held that "that the delay between letter of resignation and its effective date was not such, in the circumstances, as to amount to an affirmation of the contract of employment." Hence I hope that my working through the notice period does not present a problem for me either.

 

There are quite a lot of fine points which I would have to present in ET. Regarding the very last point (#5) in the above claim statement, I am wondering whether there is a concept called "conditional acceptance of contract breaches". By that I argue that there were fundamental breaches but I was prepared to accept them if my teaching assistant role was not so unfairly rejected (I have written evidence to suggest that 1.there are definitely works to be done, 2.I am excluded as the named person; and 3.much less qualified people are being employed). Is there any previous similar case that anyone may be able to suggest on this, or will I be making legal history on this point?

 

Many thanks as always.

 

AG

[agy100]

Did you put your complaints in writing at the time ?

 

I did go through a grievance process against my HOS, and I had to appeal twice. Every time, the uni dismissed my complaint:(.

[Grotesque]

Hi Agy100,

 

I am a bit confused. Firstly you say you resigned in Feb '13 then in post no.4 you say you resigned 11/10/12. Which is it?

 

This is very important because of the restrictions on how soon after resignation you must submit your ET1.

 

DJ

 

 

Dj, I read that to mean that he resigned in October 2012 but his contract did not expire until February 2013. His 'three months minus a day' submission period would of course start from the former rather than the latter...

[Grotesque]

Apologies to Agy, I note you addressed that concern and I was wrong? Good!

 

Re: differences in interpretation, are universities here- as in the US, for example- deemed to have 'quasi-judicial immunity' and thus be their own tribune?

[Emmzzi]

Not agreeing with your grievance and not having a part time role available do not make a a case. What else do you have? Occ health referal maybe?

[Emmzzi]

PS conditional acceptance of breaches - no.

[agy100]

Apologies to Agy, I note you addressed that concern and I was wrong? Good!

 

Re: differences in interpretation, are universities here- as in the US, for example- deemed to have 'quasi-judicial immunity' and thus be their own tribune?

 

Hi,

 

Presumably not here in the UK - ET accepted my claim application and there will be a hearing - I will report on today's CMD below.

[agy100]

Not agreeing with your grievance and not having a part time role available do not make a a case. What else do you have? Occ health referal maybe?

 

Hi Emmzzi, thanks for taking the time to go through my statement above - I apologise for the dense block of text it appears on the page. I obviously deleted some blank lines which I should not have.

 

Regarding your point of not having a part time role does not make a case: my argument is not about the part-time role per se. My argument is that the employer ignored my medical/health conditions for asking for the p/t role.

 

The employer claims in their response that they denied my request for p/t contract for "sound operational reasons". There are three problems with their claim:

 

1). there is no evidence of that anywhere in my personnel file (I asked for a full copy of my personnel file before I left), and I am not aware of any consultation with my colleagues. Hence this is just a claim with no evidence to back it up.

 

2. this is contradictory to the fact that they happily let me go 100% without making any effort in retaining me, despite their "sound operational reasons" for not granting me 50% contract. They knew that by refusing my request, I would resign - a classic definition of constructive dismissal?

 

3. the biggest problem I can see is that they ignored my repeated complaints of stress/depression. And by their own admission, they did not consider this factor when denying my request. If they had considered this factor, and had had conversations with me exploring various options, and then denied me of my request, I would certainly have less reason to complain. My argument is that given my repeated complaints of stress/depression, and given that the employer did not want to know, I would be risking my life to continue working there, hence I had no option but to resign. How would an employer be expected to behave given the current health&safety regulations and given that the employer has a health/safety policy as part of the employment contract?

 

Please keep throwing questions at me as they really do help me to gather my thoughts - thanks.

[Emmzzi]

How did your employer KNOW you had stress/ depression AND that reduced work hours would help? AND was it severe enough to be classed as a disability? (there is no legislative protection for "a bit ill but not disabled" and in fact no duty to consider reduced hours if you are not a carer, or disabled.)

 

Fit notes, Occ health report - that is what would really help your case.

 

Currently you can write it off a "he complained a bit" and "the course needed one dedicated full time tutor and was unsuitable for job share." You need it to be tighter than that.

[Emmzzi]

 

2. this is contradictory to the fact that they happily let me go 100% without making any effort in retaining me, despite their "sound operational reasons" for not granting me 50% contract. They knew that by refusing my request, I would resign - a classic definition of constructive dismissal?

 

No. Resigning was your choice and you have not yet demonstrated they made it unbearable to stay - just a bit uncomfortable. Which is in the "who really likes work though?" category.

 

You need stronger evidence.

[agy100]

Here is an update you on my CMD today.

 

I received a letter from ET on July 11 for having a CMD. That letter spelled out the matters to be discussed, covering 11 items, such as whether a Pre-Hearing Review (PHR) is required, and crucially, "The nature of the claim which is being made, the statutory provisions upon which the claimant relies and the essential matters which must be capable of being proved at the Hearing if the claim is to have a reasonable prospect of success.", and blah blah.

 

What turned out today is certainly not as scary as I thought.

 

The Judge started off by explaining that the Rules of Procedure for ET have been updated from 2004 to 2013 from July 29, which means a CMD is now called a "Preliminary Hearing"! What comes after PH is "Final Hearing" with no other stages in between. Though I raised my case before this change, my case will be heard under the new Rules.

 

Thankfully, I do not have to pay for this stage of ET even though there is a new fee schedule in use from July 29. Any appeal later would attract a fee.

 

The Judge explained that, as part of the new Rules, the parties should communicate with each other as well as to the Tribunal. Hence either party writing to ET should copy in the other party. And both parties are free to communicate with each other, only copying ET when necessary. I was glad that the Judge clarified this as I was not sure about the relevant formalities.

 

A fairly lengthy discussion took place about whether a full panel or a single judge should hear the case. As my case is a simple CUD with no other discrimination claims, the Judge explained that, unless the Claimant and Respondent differ in many of the facts, a single judge is usually sufficient. As I do believe that both sides agree on the basic facts, I went along the eventual decision for a single judge. That was despite a small reservation in my mind that a judge may well be overly legalistic by their very nature. As an appeal is now a quite expensive thing to do from now on, it is likely that I will just have this one opportunity to argue my case. I felt quite bit of stress to decide there and then, and I am just hoping that going for a single judge will not make too big a difference in the eventual outcome - but I will never know.

 

The Respondent is represented by a solicitor, and he declared two internal witnesses - two Senior Deputy Principals (SDP) in fact. One was very closely involved in my grievance case against my manager, and I certainly have a few questions for him. But the other SDP only heard my appeal once in my grievance case - not sure why he was called as a witness.

 

I asked for no witness as I do not really want to put my former colleagues in an awkward situation of going back to face these snr managers. An employer is not supposed to victimise, but do I trust my former employer? - definitely not!

 

Due to the availability of the witnesses and my own prior engagements, the trial is scheduled to take place over 3 days a long time away: Dec 2, 16, 17!

 

We also discussed about exchanging documents. It was decided that the Respondent will send me their bundle by Nov 1, and then I will send them my documents not found in their bundle by Nov 15. They will produce the final bundle by numbering and copying for ET one week before the final hearing.

 

In the meantime, I will write to the Respondent for some additional info like the number of employees on p/t contract (by gender) etc.

 

The Judge did ask whether I have prepared a schedule of loss, and I have. But I did not get a chance to clarify when would be a good time to send the schedule of loss to the Respondent - any suggestions?

 

For a layman like me representing myself, I thought the CMD/PH session is helpful for me to get a feel of ET - first time after all.

 

Hope this rambling account is of some use to someone.

 

And I would be grateful for any specific suggestions you may have on my case, especially regarding what sort of information I could/should request from the Respondent. Emmzzi mentioned earlier about OH report - I did visit OH at the time, I will ask for their record - thanks for that:).

[agy100]

 

Fit notes, Occ health report - that is what would really help your case.

 

 

Never had a Fit note, but I did have a 2-week sick note from GP for work-related stress which I submitted to HR at the time. I also visited OH so I will be asking for their record of my visit. I have asked GP to produce a medical record for the period in question. The stress caused a serious and sustaining skin condition that I had to visit my GP a good few times (BTW, the GP/dermatologists have claimed that they don't have any cure of the conditions!).

 

The issue is that the employer did not engage in any discussion whatsoever regarding my health conditions. The OH consultant advised me to speak to my manager - I did but no consideration was given from him. My GP advised me to make changes to my work arrangement hence my request for contract adjustment.

[Emmzzi]

So you did not leave your employer fully informed of your condition; nor are we at all clear yet that it meets the definition of a disability. Nor did OH say it did or suggest adjustments due to disability.

 

Please don't mistake your pre-hearing as a sign you have a good case; it just means the points of law you are arguing are valid reasons to ave an ET, and sets the timescales. I still can't see anything other than your boss annoying you. That's not enough for C.D.

[agy100]

So you did not leave your employer fully informed of your condition; nor are we at all clear yet that it meets the definition of a disability. Nor did OH say it did or suggest adjustments due to disability.

C.D.

 

I did make my request for p/t for health reasons so the employer cannot plead ignorance. However, I am not raising the case on disability, but I am hoping to hinge it on some health and safety regulations.

 

I have no illusion on the challenges of proving my case in law. Ignoring the health/medical conditions is just one of my three arguments. The other two are to do with not following internal procedures in the grievance and disciplinary investigations.

 

What you are highlighting is helping me to tighten my arguments - much appreciated!

[Emmzzi]

then I think you need to go through the workflow I each procedure step by step and highlight what they did and did not do at each stage - all I have seen so far is that you did not agree with the outcome?

 

so

a) advise 3 days in advance there will be an investigatory interview

I was given 2 days notice

 

etc etc.

 

You are going to need material, not trivial, deviation from procedures to win. Start there?

[agy100]

then I think you need to go through the workflow I each procedure step by step and highlight what they did and did not do at each stage - all I have seen so far is that you did not agree with the outcome?

 

so

a) advise 3 days in advance there will be an investigatory interview

I was given 2 days notice

 

etc etc.

 

You are going to need material, not trivial, deviation from procedures to win. Start there?

 

Totally agree - I have documentary evidence to prove every claim I make.

 

However, the law goes further. For example, I can prove that the employer breached implied term of trust and confidence, but how to argue the "fundamental" part as CUD requires the proof to go as far as a "fundamental breach".

 

And then there is the word "unfair". I feel strongly it was unfair, but what sort of lines do I need to take to prove it in court? Do I point to other former colleagues as a benchmark? Or do I highlight the fact that I am the only one who was under the attack by the manager? Or else?

 

I am still not sure about these two key parts and will defintely have to read more - any suggestions would be much appreciated.

[Emmzzi]

Unfair - is not you feeling hard done by, it's a breach of the law, in this context. Ultimately only a judge can decide, but you need to be very clear exactly what laws you feel are broken.

[Grotesque]

Unfair = a test of 'reasonableness'.

[steampowered]

Question: Any initial views on how strong the case is?

 

Constructive dismissal is based on breach of contract. It is not enough to show that the employer acted badly or unfairly. You must show that their actions were in breach of contract or otherwise unlawful.

 

You really need to focus on this. You need to be very clear about why a specific aspect of the employer's conduct was unlawful and what specific law or term of your employment contract was broken. The "unfair" element is less important - once you prove you were constructively dismissed, it follows almost automatically that the dismissal was unfair, since you need a breach of contract to get to get to CD in the first place.

 

You are trying to make your case by throwing lots of things together and trying to create a bad general impression of the employer. This kind of approach won't work. Lawyers and judges work with specifics.

 

My honest initial view is that your case is not that strong - sorry. Not because I don't think you have been treated badly, but because the law can be quite restrictive. It is not clear to me how the employer has acted unlawfully here. The "breach of trust and confidence" allegation is difficult since you resigned before the employer's investigation had been completed and hence never found out the result of the investigation. You are essentially trying to argue that the allegation against you should not have been investigated - not necessarily an impossible argument, but a very difficult one. Not saying don't pursue it, but take into account if the other side makes a settlement offer.

[Grotesque]

Yes: where an employee resigns due to the employer's behaviour constituting a breach of contract serious enough to leave no alternative than resignation. The breach can be of either express or implied terms, but the resignation must be in direct response to it.

 

Would you say that the most relied-upon claim is that of a breach of 'the duty of trust and confidence', whether this applies to the OP or not...?

[agy100]

 

... The "breach of trust and confidence" allegation is difficult since you resigned before the employer's investigation had been completed and hence never found out the result of the investigation. You are essentially trying to argue that the allegation against you should not have been investigated - not necessarily an impossible argument, but a very difficult one. Not saying don't pursue it, but take into account if the other side makes a settlement offer.

 

First of all, really appreciate your comments.

 

There were two investigations my manager set up in a letter to me on 15/11/2011, one to investigate my allegations of his bullying behaviours to me, and the second is to investigate his allegations of my "conduct", namely refusing to attend his meetings.

 

The first is his response to my accusing him of bullying in an email. HR asked me whether I wanted to raise a formal complaint, I said yes but I would do it in December as I was busy teaching. The staff grievance procedure requires who ever complains to complete a form to start a formal complaint but he took it on himself to start the investigation, which was very odd to me at the time. But I went along with it, and went through meetings and two appeals right to the Principal, who in the end delegated the final appeal hearing to one of the Snr Deputy Principal (he will be one of the two witnesses). So this investigation was completed, and surprise surprise, my appeals were dismissed (the last of which was 6/8/2012).

 

I have a number of issues with this investigation of his bullying:

 

- initiated by the manager, not in line with the grievance procedures;

- calculated to confuse so that I would not start my "formal complaint" but I did not know at that time;

- I put forward a colleague as a witness, who was interviewed, but the interview was not minuted, allegedly for the reason of anonymity with the witness's agreement. Yet the witness prompted me to request for the interview record at the time! When my witness learned about no record of the meeting being created, she referred to it as a "procedural irregularity";

- there are other delays to the investigation devious from the grievance procedure (the procedure says some should happen in 10 w/days but it took 2 months etc).

 

While the first investigation was going, the second was started on me. A report was produced on 13/2/2012 but it was held back from me without consulting/informing me. I thought the investigation was dropped because the investigator suggested that manager's meeting requests may be regarded as "unreasonable management actions". By the end of August, my manager announced that he was leaving the university after 4 years of services. The majority of the colleagues were talking about celebrations. And I thought the bad days were over too. Hence I renewed my request for p/t contract change as I was still concerned about my health. On 9/11/2013, I had a meeting with one of the Snr Deputy Principals (who was acting as my interim manager by then). He told me that my contract change request was turned down, and the disciplinary investigation was to be re-instated. I snapped and walked out of the meeting as I thought that neither decisions were fair, the first ignoring my health conditions altogether, and the second a total surprise. I just felt that I did not have any trust left with the snr management to go through another investigation. I emailed my resignation two days later.

 

So yes the second investigation was not concluded, but my argument is not against the investigation itself (I went to the initial investigatory meeting after all), but about the long delay which is totally against the staff disciplinary procedure. As a result of the delay, I did not get a chance to address some of the untrue allegations against me made by the bullying manager.

 

This is to give a bit of background to the two investigations.