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Experience of 'constructive dismissal' anyone?

Discussion in 'Workplace dilemmas' started by coalwoman57, Aug 5, 2010.

  1. I recently had my resignation accepted after the 31st May deadline. I was SO relieved, as I felt I'd lose my sanity if I'd stayed.
    However, I'm now starting to get feelings of anger, about the way I was treated etc. and have been researching 'constructive dismissal', but it looks like a particularly difficult path to tread.
    (I should have got union advice beforehand, but was so stressed I couldn't think straight)
    Has anyone on here taken this route?


  2. A bit of a minefield, I understand and usually difficult to prove. I understand your bitterness, but as you know heads talk and it is probably better to cut your losses and to look to the future. After all they let you go after the deadline and I presume you have a job to go to. If you do not have one you might reconsider and take advice about constructive dismissal from your union. Good luck.
  3. I think you'd have to show that you tried to put things right while you were employed but your employer would have none of it. I'm assuming that you are talking about being bullied?
  4. Increasingly difficult - generally advice is not to resign before discussing with legal/union bods - but all that's great retrospectively!
    These may help (apols for all of the text!):
    Daniel Isaac, principal in the employment team at Withers, answers the key questions on which a claim for unfair constructive dismissal by an employee can stand or fall Q What is the definition of constructive dismissal?

    A Constructive dismissal occurs where an employee terminates their employment in response to their employer's treatment. Although there has been no actual dismissal, the treatment is sufficiently bad that the employee is entitled to regard themselves as having been dismissed.

    Q What does the employee have to prove?

    A The legal definition is the termination of employment by an employee in response to a fundamental breach of contract by the employer.
    Sometimes this will be of an express term of the contract of employment, such as the right to be paid a certain amount on a certain date. More commonly, it will be that the employer's behaviour destroys or seriously undermines the relationship of trust and confidence that should exist between employer and employee by, say isolating them or failing to deal with a grievance.
    Q How easy is it to show constructive dismissal?

    A Constructive dismissal is far more difficult to prove than employees often think.
    First they must prove a fundamental (rather than minor) breach of contract by the employer.
    The employee must also show that their decision to terminate their employment was in response to the breach and not, for example, because they had been offered a more attractive job.
    A tribunal will usually expect an employee to have tried to resolve the complaint through the grievance procedure before jumping ship.
    Employees frequently rely on off-the-record conversations as grounds for constructive dismissal. For example, if an employee was offered a pay-off as an alternative to a performance monitoring programme, but was told that they would fail the programme, the employer cannot assume that saying the offer was 'without prejudice' will help to keep the threat out of court.
    Q Is constructive dismissal a claim which can be brought in the tribunal or court system?

    A Constructive dismissal is not a claim in itself, but is a springboard to other claims such as wrongful dismissal and unfair dismissal.
    Where discrimination occurs which does not involve dismissal, the compensation recoverable by the employee may be limited, but if they can link the discrimination to the termination of the employment, by asserting constructive dismissal, compensation may rise to reflect loss of earnings.
    Q Why would an employee who already has another job assert constructive dismissal?

    A Constructive dismissal occurs following a fundamental breach of contract by the employer, which cannot then rely on that contract in the future.
    Therefore, if an employee can show that they have been constructively dismissed, they will not be bound by post-termination terms in the contract, such as restrictive covenants.
    If an employee wants to avoid contractual restrictions - perhaps because they are joining a competitor - they might assert constructive dismissal.

    Q How can I tell if an employee is preparing to assert constructive dismissal?

    A Since the introduction of statutory grievance procedures, employees may not bring constructive unfair dismissal claims without first raising a grievance.
    That grievance is sometimes raised after termination of employment, but may be raised immediately before asserting constructive dismissal. Other indications include: re-opening old complaints in an effort to 'refresh' old breaches of contract; uncharacteristically taking notes at meetings or confirming conversations by e-mail; or spelling out the reasons for resigning in a letter.

    Q How can we head off constructive dismissal claims?

    A The heart of any constructive dismissal claim is a breach of the duty of trust and confidence. Expressions of trust and confidence in the employee by the employer may assist (although a tribunal or court will recognise the difference between a cosmetic communication and one genuinely designed to reassure).
    More importantly, constructive dismissal claims focus on a grievance and getting to the heart of the grievance is the key either to reassuring the employee or (if they are determined to leave) weakening any potential claim of constructive dismissal.
    There are, however, a number of legal entitlements that can be of assistance to the bullied employee:
    • constructive dismissal
    • criminal harassment
    • misuse of procedures - unfair dismissal
    • health and safety law
    • anti-discrimination legislation
    • personal injury.
    For full details please access ATL's comprehensive publication, Bullying at work, which also features a model policy.
    Following is an outline of these entitlements. It is essential that you seek advice from ATL on your position and at the earliest possible stage.
    Constructive dismissal
    Employees who are being bullied often refer to constructive dismissal without fully understanding what it means.
    When employers break their fundamental obligations under the contract of employment, an employee can resign, either immediately or after giving due notice, stating clearly that the employer's conduct has been so unreasonable that s/he has no option but to leave.
    In such a case the employer has not written to the employee giving notice, so the employee is not formally dismissed. However, the employee can argue that the actions of the employer were such that it became impossible to remain in the post ­ s/he has been effectively (ie `constructively') dismissed. If the employee delays the resignation, s/he is seen to have accepted the employer's conduct and to have waived the breach of contract. A claim to the employment tribunal must be lodged within three months of the date that the resignation takes effect.
    Criminal harassment
    The Protection from Harassment Act 1997 states that a person must not pursue a course of conduct which amounts to harassment of another and which s/he knows or ought to know amounts to harassment of the other. A breach of the Act is a criminal offence, which can result in imprisonment or a fine. A breach can also lead to a claim in the civil courts when damages may be awarded for (amongst other things) any anxiety caused by the harassment and any financial loss arising from the harassment. It is very unusual for prosecutions to be brought as a result of a breach of these provisions in the employment context. The same Act provides that the victim of harassment can apply for an injunction against the harasser.
    Misuse of procedures ­- unfair dismissal

    [​IMG]ATL has dealt with many cases where a procedure has been invoked against the person who is making allegations of bullying. For example, a headteacher who is bullying a teacher may also invoke the disciplinary or competence procedure, securing the teacher's dismissal after due hearings. Fortunately, people dismissed in these circumstances have a potential means of redress via the employment tribunal (provided they have one year of continuous employment). A tribunal may conclude that the dismissal was unfair, but the outcome of any employment tribunal is difficult to predict.
    Health and safety law
    Under health and safety law, employers have a general duty to provide a safe and healthy working environment, which should include protection from bullying at work. The Health and Safety at Work Act 1974 obliges employers to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees.
    Anti-discrimination legislation
    You will not be able to take a case to the employment tribunal just claiming that you have been 'bullied'. The law does not recognise bullying as a stand-alone claim. However, in some circumstances, bullying may contravene the legislation protecting employees from discrimination on grounds of sex, race, disability, sexual orientation, religion or belief and, from October 2006, age. These provisions give employees free standing rights and protection against some harassment by employers and fellow employees. Case law has established that harassment based on sexual or racial grounds amounts to unlawful discrimination and contravenes the relevant provisions of the Race Relations Act 1976 and the Sex Discrimination Act 1975.
    The Disability Discrimination Act 1995 makes it unlawful for employers to discriminate against employees on the grounds of disability.
    Personal injury
    In circumstances where bullying has led to your suffering from mental or physical harm you may be able to pursue a claim for personal injury. ATL members can obtain further advice by contacting Morrish & Co, the firm of solicitors who handle this form of legal action. You can find out more by visiting the Moorish & Co website or by emailing info@morrishlaw.co.uk.
    With any such claim, ATL members should contact ATL first before using the law to tackle bullying.
  5. Thank you all for your replies.
    I don't have another job to go to, but things were such that I'd rather stack shelves than continue there.
    I found out that my predecessor left after involving the union re: bullying. Hmm. Not sure if it was bullying in my case per se. Certainly I now have health problems, possibly stemming from stress. I don't want to say too much, for fear of identification.
    I don't half seem to pick some horrible places to work! Some years ago I had a Head who wrote an illegal reference. If it hadn't been for two years in a lovely school, I would have given up on teaching completely. I suppose I bring problems on myself, because I only want to work part-time, and part-timers often seem to get the sharp end of the stick, so to speak.
    Miss Pious, that ATL info was clear and informative. Thanks for that.
    (Will be going away next week, perhaps that will clear my head a bit!)
  6. Torey

    Torey Occasional commenter

    Even if you had stayed and fought chances are you'd still be in the same position, so although it feels difficult now don't ever think 'what if'.
    The trouble with going for constructive dismissal would be the level of proof needed, the impact on your health, the ability to get another job and the length of time it takes. You need to balance this with the level of compensation you could receive if you were extremely fortunate to win, which is unlikely to be much.
    If you really want to know where you stand talk to a solicitor for half an hour as this is usually free.
  7. It is a tough road to go down, to sue an employer. That's not to say you shouldn't do it necessarily, but it is not an easy thing to do. As per last post - visit to the solictor is a very good idea - they are quite candid in my experience.
    How about some supply teaching when term starts again? I've had some fab experiences of supply teaching, it really does make you realise that not all schools are rubbish, there are some great ones out there.
    It sounds alot like you are blaming yourself ....if you really do believe that you attract these sort of situations then maybe counselling is an option? In some cases you can get this foc (I believe teachers support network offer it?) and as I am also a qualified counsellor I can give you some pointers towards free/low cost agencies who might be able to help.
    If you don't want to post all of that on here, then by all means message me and I'll email you with info.
    Hope you are managing to enjoy the summer hols, and at least you wont have to go back to that school in September, so the only way is up I reckon [​IMG]
  8. Thanks folks! Just written a long rambling reply which I then 'lost'! (Long drive home followed by drinks.) Will answer, with thanks, when I can next wrest the laptop from son! Off to bed, knackered, but refreshed!
  9. Hi I am presently in such a position and again have learned that my two predecessors left due to lack of support and management bullying. I am however under no illusions that if I try to go down the formal route (I've tried resolving informally) I will pretty much make myself unemployable as I am a Head of RE in a Catholic School. Having come late into teaching I am continuously shocked and disgusted at the lack of professionalism, concerted bullying and dishonesty and lack of moral conscience of many in management in Education. It is too easy for victimisation and bullying of staff in schools to go unpunished. As soon as I am in a position to leave teaching (I am the main breadwinner) I will, in spite of the fact I love teaching and have never found students to be an insurmountable problem, but management and those in authority, you can't win!
  10. totally agree with everything you say Ruah. The school I worked for was determined to get me out and resulted to lies and shocking allegations which left me speechless and made me realize that there was no way I could stay. This was also a RC school. I can not believe the lack of professionalism, the dishonesty and lack of moral conscience I experienced from them and how they can get away with victimising people.
    Thank God I was in a position to not need the job and I am soooooooooo glad that I am out, but it has left me with feelings of hate, anger and frustration of how I was treated during a time of bereavement and ill health. I also think it will take me some more time to get over it, and although I loved teaching, and was considered a good teacher, I am not sure that I will ever enter another school again. My thoughts are with you and everyone in this horrible position as it really takes it out of you, one way or another. Take great care of yourselves you are much more important, and do not deserve to be treated like that. Sadly however life in not fair.
  11. you are much better out of it then still being there, and I can totally understand the feelings of anger. I would suggest to be carefull if you have to continue working in the area and finding another job as heads will talk. Take care
  12. This is true BUT also you may well find that Heads are quite well known for what they are in the area too...
    Certainly my experience is that when I have worked for a certain sort of HT that often I have been seen as dedicated to have stuck it out as long as I did and they usually "understand" any comments made by the ex HT...
    So its not always the end of the world... a good rule of thumb for me was if the Union were well aware of the HT's antics then others in the LEA/area probably are too...
  13. Good point.
  14. Vampyria

    Vampyria New commenter

    Agree! Works both ways. Our last head was quite unpopular with staff and it later transpired also with the other heads in the borough!
  15. Gardening Leaves

    Gardening Leaves New commenter

    There is little for me to add on top of the excellent advice and support you have already been given here.

    It is understandable that you should feel angry after the dreadful way you were treated. However, you are one of the fortunate ones who got out and are moving on. Taking action for constructive dismissal is, as others have said, extremely difficult and very very stressful. I think it's well known that I am currtently taking action for harassment but the only reason is because I have been vey badly injured and had to retire. There is also the small matter of having been robbed of a hell of a lot of money as a consequence.

    Channel your anger into being so successful in your new post that your old school realises what fools they have been. Plus sooner or later your old Head will get what's coming!
  16. Yes. I feel, as others have said too, just a feeling of relief that I'm out of it now. So will not be pursuing the matter. Getting evidence would be my main problem, and also, I am trying not to raise my stress levels to even higher than they were/are already.
    (No job, sole earner, so going to try supply for a while)
    So sorry to hear about your situation Gardening. So many threads on this forum, and others, that make my blood boil at the way so many of us get treated.
    Thanks to all who replied.
  17. Many thanks for your message.
    Yes I am in Scotland.
    I went to the local Sheriff Court to ask for procedural guidance, and was told that I can raise the case under the "Ordinary Cause Rules (1993)". I have been since contacting the local Citizen's Advice Bureau via phone with no luck at all (no one ever answers) - I may just have to make a visit in person.
    The clerk in the Sheriff Court was quick to remind me of the need to pay the legal fees of the other side should I lose, as if she was trying to put me off from going ahead with a case. And she was also pointing a pile of cases on the wall that some have been on the go since 2006! They don't seem to be interested in justice do they?!
    I am trying to assess my chance of success. I want to present my own case, and I have plenty written emails between me and my former employer and some other relevant supporting materials (from former colleagues). My former employer as an organisation will be using lawyers. As well paid as they are, they will find it difficult to understand the intricacies of the case. Surely my chance of success will be good, if judgement is made on evidence and reason. But I guess it is not as simple as that. My question is then what sort of dirty tricks I should be expecting from these lawyers?
    Any suggestion on where to find actual constructive dismissal cases to read?

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