Am I being pushed out: ask the expert

I recently had to give up my job as my boss was being unreasonable. I worked the night shift for a year before going onto days after Christmas. I spoke to my boss and we agreed (verbally) that if I was to go onto day shifts that I would work a few hours every other weekend and the majority of my hours during the week. I found I was working almost every weekend with long shifts and had to go into the office to discuss this several times. I am contracted for 20 hours a week and was being given 16 hour shifts over the weekend. As a result of this I felt I had no option but to leave my job, but I feel as if I have been pushed out. Can I do anything?

You and your employer expressly agreed to change your shift pattern to day shifts and a few hours every other weekend. Whilst it is possible to agree to vary your employment contract orally, an oral agreement is more vulnerable to a later challenge due to it being more difficult to evidence what was agreed.  For any contractual amendment to be binding, the employee must receive some form of consideration in return for allowing the variation. In your case, you have probably received sufficient consideration in that you have continued to be employed.

Whilst you expressly agreed to change your hours, at no point did you agree to work 16 hour shifts every weekend. You have made it clear that you are not happy with this arrangement since any deemed acceptance may be a problem for arguing breach.  As such any continued pressure by your employer to work such hours would be likely to constitute a repudiatory breach of your employment contract. A repudiatory breach is a breach of contract by one party that is sufficiently serious and goes to the root of the contract, and can entitle the other party to treat the contract as terminated with immediate effect and open up for a constructive dismissal claim.

Grievance

By going to the office several times to discuss the weekend hours, you have highlighted to your employer that there is a problem with your working arrangement. Your employer should have addressed your complaints as a grievance and followed any grievance procedure set out in your employment contract or staff handbook. It is an implied term in every employment contract to allow an employee a reasonable opportunity to obtain redress in respect of a grievance.

It is worth checking your grievance policy to check how complaints should be dealt with by your company. If your employer has failed to follow the correct procedure it may constitute a repudiatory breach which again can lead to a constructive dismissal claim.

Constructive unfair dismissal

A constructive dismissal occurs where an employer does not dismiss the employee, but instead the employee resigns and shows that they were entitled to do so by virtue of the employer’s conduct. For this you would need to show a fundamental breach that went to the root of the contract, that you resigned promptly as a result of that breach and that you did not accept the breach.  When you resigned from your job, you did so because you felt that there was no other option for you due to the hours that you had been forced to work and because the issue was not addressed even after you complained.   You appear to have resigned in response to the breach (es) so you may well have a claim for constructive dismissal against your employer.

It is unclear from your question how long you have been long weekend shifts, but your case for constructive dismissal will be far stronger if you did not delay too long before complaining and resigning due to the breach.  As I have mentioned, if an employee waits too long before resigning they may be considered as “waiving” the breach and treating the contract as continuing. However, as you complained several times, your employer will have difficulty proving that you have waived the breach.

You say that you resigned on 18 May 2011 and that your notice period ends on 15 June 2011. However, you do not say whether you have actually worked your notice period. In practice, it is not common for employees who are claiming constructive dismissal to actually serve out their notice since they walk and immediately usually, but where they do, the constructive dismissal occurs on the date when the notice expires.

Prior to making a claim for constructive dismissal you should accept the breach – which means letting your employer know in writing that the reason for your resignation was because of the increased weekend workload, and/or because your grievance was not considered satisfactorily.  If you have not done this already you should do so.

The claims you would be making as a result of resigning would be:

(1)    Breach of contract – payment for your notice pay if you have not already been paid for this.

(2)    Unfair dismissal – possible to claim if employed continuously for one year such as yourself.  If successful you would be entitled to:

(a)    a basic award based on age, length of service and weekly salary capped at £400 per week;

(b)   compensatory award based on what is just and equitable – generally on how difficult it is for you to find another position.

You should be aware however, that constructive dismissal claims are difficult to run based on the need to establish a breach of contract.  However the making of a claim may lead to a negotiated settlement.

You should also note that if you do plan to make a claim against your employer you must do so by 18 August 2011 if you didn’t work your notice (or 14 September 2011 if you did work your notice).

I hope you find this advice of use.

 Sophie Harris helped with the preparation of this answer.

 





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