Help with possible constructive dismissal case...
Discussion
A bit of background first;
- The missus has worked for a recruitment company as an office manager since Feb 2007.
- She went on maternity leave at the end of January with a view to returning to work in December.
- MD is a strange one, cares nothing of the staff and has made numerous members of the team leave over the years through very dubious methods.
- The missus has always got on very well with the MD, always asked for her opinion on certain matters, few emails praising her beyond belief, doesn't know what they'd do without her etc etc.
Anyway my partner wanted to return to work on a reduced hours basis going from 42 hours p/week down to 30 with a day off every Wednesday to cover child care issues, so a request was flexible working request was filled in (very formally) and a meeting was arranged for her to go in and discuss it. We genuinly thought there would be absolutely no problem with this as another person was taken on when my partner left to carry out her role so we thought they could each cover each others desk when the other was away and the MD would be happy because my partners salary requirement would of course be reduced based upon the reduction in hours. However the meeting did not go like this at all, as soon as my partner entered she felt she was in a disciplinary meeting and not there to discuss the flexible return to work request. A few points were made during this meeting;
1. Most of the admin work that she was in charge of had been removed or made simpler.
2. The points my partner raised that may have been issues, namely consultants having to answer the phone in my partners absence etc were instantly dismissed and brushed aside.
3. The MD basically said "if you read between the lines here you will see where we are going with this".
4. MD said there was possibly 10 hours of admin work a week, my partner said she could then possibly make up her salary by increasing the tax credits, a comment was made to the person taking the minutes "see this is what we pay our taxes for", to which my partner replied with hang on a minute I want to return to work but there is no job for me!.
5. My partner thinking on her feet mentioned a return as possibly a consultant, the MD said this could be looked at, she would instantly have a target to hit in the first month, if it wasnt reached she would be disciplined, along the lines of 3 strikes and your out. My partner has never done sales so this is not a viable alternative role within the company especially if she has to meet targets from day one.
So the top of bottom of this is that my partners job no longer exists and the MD is trying to force her out. It was mentioned several times that "YOU need to propose exactly how YOU are going to fit into this business now", to me this is absolute BS, why should it be up to my partner to decide what her role in the company should be, surely that is down to the MD??
We are currently seeking some legal advise on this but the more info I can get the better hence any help anyone can provide would be very much appreciated. We are currently asking the car insurance company if the legal cover we have with them will cover us for industrial tribunals and the advise we have had so far from ACAS is to respond to the MD to say that the meeting was not what was expected and that a satisfactory conclusion was not reached with regards to the flexible working request. Therefore the MD has to respond to this in thie first instance. If they then come back to say the request has ben refused then we are going to propose that she returns to work in the exact same role she had before maternity leave, we believe she has to agree to this as she must keep the job available for my partner to return to. Failing that then she should be either offering an alternative role or making my partner redundant. Does this sound like a logical path to take??
- The missus has worked for a recruitment company as an office manager since Feb 2007.
- She went on maternity leave at the end of January with a view to returning to work in December.
- MD is a strange one, cares nothing of the staff and has made numerous members of the team leave over the years through very dubious methods.
- The missus has always got on very well with the MD, always asked for her opinion on certain matters, few emails praising her beyond belief, doesn't know what they'd do without her etc etc.
Anyway my partner wanted to return to work on a reduced hours basis going from 42 hours p/week down to 30 with a day off every Wednesday to cover child care issues, so a request was flexible working request was filled in (very formally) and a meeting was arranged for her to go in and discuss it. We genuinly thought there would be absolutely no problem with this as another person was taken on when my partner left to carry out her role so we thought they could each cover each others desk when the other was away and the MD would be happy because my partners salary requirement would of course be reduced based upon the reduction in hours. However the meeting did not go like this at all, as soon as my partner entered she felt she was in a disciplinary meeting and not there to discuss the flexible return to work request. A few points were made during this meeting;
1. Most of the admin work that she was in charge of had been removed or made simpler.
2. The points my partner raised that may have been issues, namely consultants having to answer the phone in my partners absence etc were instantly dismissed and brushed aside.
3. The MD basically said "if you read between the lines here you will see where we are going with this".
4. MD said there was possibly 10 hours of admin work a week, my partner said she could then possibly make up her salary by increasing the tax credits, a comment was made to the person taking the minutes "see this is what we pay our taxes for", to which my partner replied with hang on a minute I want to return to work but there is no job for me!.
5. My partner thinking on her feet mentioned a return as possibly a consultant, the MD said this could be looked at, she would instantly have a target to hit in the first month, if it wasnt reached she would be disciplined, along the lines of 3 strikes and your out. My partner has never done sales so this is not a viable alternative role within the company especially if she has to meet targets from day one.
So the top of bottom of this is that my partners job no longer exists and the MD is trying to force her out. It was mentioned several times that "YOU need to propose exactly how YOU are going to fit into this business now", to me this is absolute BS, why should it be up to my partner to decide what her role in the company should be, surely that is down to the MD??
We are currently seeking some legal advise on this but the more info I can get the better hence any help anyone can provide would be very much appreciated. We are currently asking the car insurance company if the legal cover we have with them will cover us for industrial tribunals and the advise we have had so far from ACAS is to respond to the MD to say that the meeting was not what was expected and that a satisfactory conclusion was not reached with regards to the flexible working request. Therefore the MD has to respond to this in thie first instance. If they then come back to say the request has ben refused then we are going to propose that she returns to work in the exact same role she had before maternity leave, we believe she has to agree to this as she must keep the job available for my partner to return to. Failing that then she should be either offering an alternative role or making my partner redundant. Does this sound like a logical path to take??
It sounds like legal advice is a must, from what I understand they are obligated to keep her job open for her when she wants to return, reduced hours is something they are obliged to try and accomodate but don't have to. It might be worth her just saying that she intends to return to her old job doing the old hours. It isn't her problem that the job no longer exists, if it doesn't exist then they will have to offer her something else or make her redundant which giving the bosses attitude is probably the best you can hope for. Unless you want the stress of an industrial tribunal whilst coping with a new baby.
You need to be clear on the maternity dates and the time taken off as this can be crucial in whether she comes back to the same job or another job.
With regards the flexible working request, there is no obligation for the business to grant it. It must consider the formal request. Why don't you consider varying the request or asking the business their view on what would be workable. It sounds like a small company and this makes it easier to refuse such requests due to resourcing or operational reasons.
With regards the thread title - as there is no dismissal and not ikely to be one for at least 4 months it is hugely premature to be talking about constructive dismissal. The situation at the time will determine the strength of any case. Building a case based on refusal of a flexible working request is quite shaky ground.
With regards the flexible working request, there is no obligation for the business to grant it. It must consider the formal request. Why don't you consider varying the request or asking the business their view on what would be workable. It sounds like a small company and this makes it easier to refuse such requests due to resourcing or operational reasons.
With regards the thread title - as there is no dismissal and not ikely to be one for at least 4 months it is hugely premature to be talking about constructive dismissal. The situation at the time will determine the strength of any case. Building a case based on refusal of a flexible working request is quite shaky ground.
Edited by edc on Tuesday 30th August 10:06
Apologies for the misleading thread title and thanks for the prompt replies.
We are aware that the flexible working request does not have to be honoured I think it was just the shock that her job was no longer there and the manner that the meeting took that we are worried about.
The MD has sent a further email today requesting another meeting to discuss my partners proposals for her return to work. Having spoken to acas again they believe the company is going down the redundancy route but they are doing it the wrong way. They have advised us to reply to the email along the lines of;
1. If her job is no longer there why was she not informed of this in writing earlier or that her job was at risk.
2. At what point were systems implemented that made her job redundant and again why were we not informed.
3. Why was the meeting last week used to advise me that my job was gone, why was I not informed of this?
ACAS also said that should they go down the redundancy route we may have a case for sexual discrimination because this all occured following a return to work from maternity hence would not have happened to a male member of staff.
My thoughts are to not mention any of the above and just respond to the email saying forget the flexible working request she will just return to work on the exact same basis as before she went on mat leave. If they have to keep the job open then surely she cannot dispute this other than to make her redundant? What do you think??
We are aware that the flexible working request does not have to be honoured I think it was just the shock that her job was no longer there and the manner that the meeting took that we are worried about.
The MD has sent a further email today requesting another meeting to discuss my partners proposals for her return to work. Having spoken to acas again they believe the company is going down the redundancy route but they are doing it the wrong way. They have advised us to reply to the email along the lines of;
1. If her job is no longer there why was she not informed of this in writing earlier or that her job was at risk.
2. At what point were systems implemented that made her job redundant and again why were we not informed.
3. Why was the meeting last week used to advise me that my job was gone, why was I not informed of this?
ACAS also said that should they go down the redundancy route we may have a case for sexual discrimination because this all occured following a return to work from maternity hence would not have happened to a male member of staff.
My thoughts are to not mention any of the above and just respond to the email saying forget the flexible working request she will just return to work on the exact same basis as before she went on mat leave. If they have to keep the job open then surely she cannot dispute this other than to make her redundant? What do you think??
Whether they have to offer you the exact job or a similar job back depends on how long your maternity leave was. Ordinary Maternity Leave is exact job back, Additional Maternity Leave which I think is over 26 weeks then a similar but not exact job must be offered as they are allowed to effectively replace you due to your extended absence.
She's had the standard 26 week mat leave + she added her annual holidays to it as well. A week or so was booked at the start of the mat leave with the remainder taken at the end of her mat leave, she also added bank holidays to it as we believe she was also entitled to them as well.
Basically her mat leave is the usual 26 weeks plus her holidays. On that basis then and from what has been said her job should remain in place no matter what??
Basically her mat leave is the usual 26 weeks plus her holidays. On that basis then and from what has been said her job should remain in place no matter what??
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