Mrs NW Suspended on full pay!!

[Zeeky]

Victimisation has a technical meaning in employment law which related to discrimination. It can be helpful to avoid using it in the popular sense of picking on someone (unless you meant to use it in the technical sense).

Edited by Zeeky on Saturday 31st May 22:37

[NormalWisdom]

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

[Siscar]

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

Constructive Dismissal I assume, good luck, I hope your pockets are deep. £1,200 for the tribunal fees on those claims and legal fees on top of that. The only positive is that even if you lose you are unlikely to have the pay the other side's costs.

Obviously you need (and are probably getting) full legal advice but my recommendation is for her not to go back in to work, constructive effective means that you can't go on there. But believe a solicitor not anyone (except BV72) on here.

[kev1974]

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

??? why?

Chances are that now they know she fights back (from an employment law point of view) they'll leave her well alone?

[SV8Predator]

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning

Ah, so they got their way in the end, after all?

[Jasandjules]

Zeeky said:

Victimisation has a technical meaning in employment law which related to discrimination. It can be helpful to avoid using it in the popular sense of picking on someone (unless you meant to use it in the technical sense).

Edited by Zeeky on Saturday 31st May 22:37

Yes indeed S27 under the Equality Act, that is why I said "without more". The problem will be a protected act to hang it upon. The S26 will also be a problem for the same reason.

I am also a touch concerned that the current circumstances will have difficulty in relation to constructive dismissal given the time which has elapsed and the offer to return to work. I'd be more inclined to return and await the next act from the employer so she could walk out on the spot. She could return to work setting out that she is unhappy with their conduct and inviting them to offer an apology in all the circumstances.

[Mr GrimNasty]

kev1974 said:

??? why?

Chances are that now they know she fights back (from an employment law point of view) they'll leave her well alone?

Have you any idea what it is like working in a toxic environment where you know you are not wanted? They won't leave her alone, they will just get more devious and insidious. Even if do do play nicely, the stress of imagining what they might try next, and having to triple check everything in case a minor error could be used against her, will do her in. There is an irreparable break down of trust. Her position IS untenable.

[Siscar]

Mr GrimNasty said:

Have you any idea what it is like working in a toxic environment where you know you are not wanted? They won't leave her alone, they will just get more devious and insidious. Even if do do play nicely, the stress of imagining what they might try next, and having to triple check everything in case a minor error could be used against her, will do her in. There is an irreparable break down of trust. Her position IS untenable.

Yes, maybe, but from a legal perspective she has arguably been investigated for a potential issue, the investigation has, again arguably, been run correctly with an independent investigator and having satisfied that investigator she has been restored to her post.

In practice of course her position may seem untenable to her, but the problem is how to prove that she has been badly treated to a tribunal - that is badly treated to the point that she is unable to continue. And it's not about how you feel about it, it's about the employer being guilty of something that warrants constructive dismissal.

The reality is that the great majority of claims for constructive dismissal fail, they fail because people don't understand how serious the problem needs to be for it to succeed. Nowadays it costs £1200 to pursue, and that's without legal representation which can be many thousands more. And the result, even if successful, is probably a few thousand pounds.

Personally I would say get back to work (unless being unpaid is not a problem) keep the head down and meanwhile get out there looking for another job. Quitting and going legal is expensive and doubtful in it's success, it may feel good to try but the reality it is probably better to just try and move on from a bad experience.

[Mr GrimNasty]

If you had read from the original 'politically correct' error, it's obvious they want her head and have carried out a malicious campaign to oust her.

Their behaviour has not been reasonable, even a cursory check of the facts would have shown no case to answer.

The outlay will be well spent. From a legal perspective she can't lose.

[IanA2]

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

Have they given any credible explanation for what they did?

Are the Union prepared to take it to an ET on constructive dismissal?

Do you have legal expenses in your household insurance. Iirc, it usually goes to around £50K which might be about enough to cover it.

Employment disputes can be drawn out and terribly terribly draining. I think it's important to set out realistic goals at the outset.

My feeling is that it may be better to use the threat of proceedings to negotiate a settlement and a reference. Remember that unless there is detriment linked to race/gender/disability/PIDA, then awards are capped at a relatively low level.

Edited by IanA2 on Sunday 1st June 18:53

[Jasandjules]

Mr GrimNasty said:

The outlay will be well spent. From a legal perspective she can't lose.

Please believe me she absolutely can. I can send you a few pages of cases which explain why your assertion is very wrong indeed.

Constructive dismissal is very hard to win and I am concerned that she did not act quickly enough to rely upon this conduct now as the reason for leaving.

Mahmud is very relevant BUT there is affirmation (without more I don't know if there is anything which could reasonably be deemed to have affirmed the contract) to be considered and the delay in leaving.

However, any further act could be relied upon IF she acts swiftly, pursuant to Lewis (i.e. the final act complained of need not be a fundamental breach but when taken in conjunction with everything else can be viable) and some would suggest it might be useful if she said something like "this on top of the theft accusations is ridiculous, I quit."

But IANHL so I'd get complete details from her own lawyers before acting.

[kev1974]

Mr GrimNasty said:

Have you any idea what it is like working in a toxic environment where you know you are not wanted? They won't leave her alone, they will just get more devious and insidious. Even if do do play nicely, the stress of imagining what they might try next, and having to triple check everything in case a minor error could be used against her, will do her in. There is an irreparable break down of trust. Her position IS untenable.

Just seems like it was a waste of time bothering to fight so far, to then go on to immediately give in and let them have the result they want.

Constructive dismissal is, I understand, incredibly hard to prove. I'm not totally sure that's what's really occurred here either, totally incompetent HR maybe, but not sure it's gone as far as CD, hasn't there really only been two incidents? I might be wrong but to me CD is more about someone's job being unreasonably messed about, things like suddenly being given ridiculous shifts all the time, or having all your duties and responsibilities transferred to someone else without explanation and being reassigned to do something wildly different to your original job that you don't want to do.

I disagree that they will now be devious and insidious, I think they'd be bonkers to do that with someone that clearly knows their rights.

[IanA2]

kev1974 said:

I disagree that they will now be devious and insidious, I think they'd be bonkers to do that with someone that clearly knows their rights.

With respect I think you making the common mistake of assuming that people have more rights than they have, or at least that can be easily be enforced.

Bone up on Dr Raj Mattu's case, or any NHS whistleblower for that matter. If Raj's case bores you try that of Dr Kim Holt.

[kev1974]

So looking back at the thread(s) as far as I can see there are three incidents not the two I said above
(1) sausagegate in Christmas 2011 in which another member of staff served something to a kid that they shouldn't have
(2) salarygate in Christmas 2013 in which some wages were held back for a few days off sick, argument about paperwork etc
(3) theftgate earlier this year in which some money was alleged to have been stolen but I don't think we ever got the story of why she was ever in the frame for it when she was off work at the time. During the process this transformed into an argument about wastage.

I've bolded "2011" to show that this goes back three years. That's not a sustained campaign to me, it's spread over too long. Plus at some point the OP says things got outsourced so there was an employer change (albeit TUPE etc) but presumably the management largely changed with the new company too.

Here is a definition of Constructive Dismissal, admittedly from Northern Ireland, but I imagine it is pretty much the same here.
http://www.nidirect.gov.uk/constructive-dismissal

My point is I just don't see this as cut and dried CD so would be careful about walking of the job out assuming a big CD tribunal payout will come at some point. Undoubtedly the various employers have behaved really badly and really incompetently, but from the story as it's been told here I could easily see a tribunal just saying "yep well it does sound like you've had a pretty rum time, but this is a CD tribunal and this isn't really CD, so not in our jurisdiction, seeya" and throwing it out five minutes later. I would just stick with it and see what happens next, who's to say that the management or incompetent HR people won't all change in the next three months anyway.

[Davel]

I think that she must just be totally sick of the place by now.

Could she not just take time off due to the stress of it all and look for something else?

Apart from wanting to hit back at them for this, is it really worth going to tribunal?

They are totally in the wrong but proving it might not be as easy as it clearly should be.

[JustinP1]

kev1974 said:

My point is I just don't see this as cut and dried CD so would be careful about walking of the job out assuming a big CD tribunal payout will come at some point. .

IANAL but I am an employer who follows procedure properly so do have an understanding of the issues.

I agree.

If the OP's wife was the head of a County Council or an NHS Trust then the payout would be significant for CD. IF it is CD, which I'm not sure it is. It's a st employer.

However, with total respect such jobs in catering are come and go, and as I mentioned before, this type of thing is rife.

There's better ways of earning a few grand, and it's much more positive searching for a new job and handing in a resignation.

[PAULJ5555]

Siscar said:

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

Constructive Dismissal I assume, good luck, I hope your pockets are deep. £1,200 for the tribunal fees on those claims and legal fees on top of that. The only positive is that even if you lose you are unlikely to have the pay the other side's costs.

Obviously you need (and are probably getting) full legal advice but my recommendation is for her not to go back in to work, constructive effective means that you can't go on there. But believe a solicitor not anyone (except BV72) on here.

Would her union pay for the legal costs?

[PAULJ5555]

NormalWisdom said:

Well she received notification that all allegations have been dropped and she is to return to work Tuesday. No apology. She will be resigning and pursuing redress under legal advice, her position is no longer tenable.

It may help if she goes off on the sick with stress that they have been causing her.

[valiant]

bks to them!

Don't resign just yet, go sick for as long as they pay full rates then use up all her holiday entitlement straight afterwards, then resign.


I've seen some strokes pulled in my time but this is just a blatant pisstake!


Op, we are all armchair lawyers here, but please ensure you get proper legal advice before proceeding with a tribunal case as things are not always as clear cut as many on here would claim. Good luck in any case!

[Zeeky]

Jasandjules said:

...I am also a touch concerned that the current circumstances will have difficulty in relation to constructive dismissal given the time which has elapsed and the offer to return to work. I'd be more inclined to return and await the next act from the employer so she could walk out on the spot. She could return to work setting out that she is unhappy with their conduct and inviting them to offer an apology in all the circumstances.

Either the allegation of theft or the suspension could be enough to amount to a breach of the implied term of mutual trust and confidence. I do not think waiting for the outcome of the disciplinary proceedings is significant. If the employer tries to make amends that may be enough for the employee to affirm. (I am not giving advice either way to the OP).

You may find the comments of Jacob LJ in the Buckland case instructive;

"...Next, a word about affirmation in the context of employment contracts. When an employer commits a repudiatory breach there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation..."