Constructive dismissal?

[Traci66]

Hi there, advice needed please.

My daughter has worked in child care sine leaving school eleven years ago. She has been in the same company for the past seven years and in march of this year she was promoted to manager. In May the nursery was sold and since the new owners have taken they have made her life hell to the point were she is being physically sick each morning just at the thought of going into work.

Examples are, she works in the baby room which houses children upto the age of eighteen months old and the owners are complaining to her every time she enters a fall by one of the children in the accident book, saying that she should take more care and they shouldn't be falling, most of them are just learning to walk so they are bound to fall over.

They say that she doesn't care for the children, yet she has devoted the past eleven years of her life caring for them. They are just picking at her constantly.

At the moment she is busy applying for other jobs even though she has loved working where she is and were it not for the attitude of the new owners would continue to do so.

I was wondering if she would have a case for constructive dismissal or not. Sorry for being so long winded but any advice would be appreciated. Thank you.

[LoftyLottie]

Please get her to phone ACAS. They are extremely helpful. I would say she has a very good case, but there are procedures she needs to follow and ACAS will explain. Get her to make a note of every time it happens. She will need to take up a grievance procedure initially - but ACAS asap.

http://www.acas.org.u...x.aspx?articleid=1410

They are very nice to deal with.

[factor-fiction]

It's very difficult. She should also ask herself whether they really would want to drive her out. She should ask about the way she is being spoken to/treated and raise a grievance. She could also keep a written log of such incidents, although i found that when people did this it often became a bit of an obsession

[Hopkirk]

If it were me, I would just go and work somewhere else.

[Traci66]

Thanks for the prompt reply Lottie, I had to take her to work this morning as her car is in for repair and when I got her there she just broke down crying and this is not her at all, and no she's not pregnant and it's not that time of the month, I think things have just got way too much for her.

[Traci66]

Thanks factor, hopkirk she is looking for another job, this is just my thinking.

[Hopkirk]

If she is that tender then the emotions of battling through legal obstacles would be very painful.

Also what would she put on her CV in future? Potential employers may be put off by her declaring that she fell out with her employers, even if she is the innocent victim.

[Traci66]

She is not usually that tender hopkirk, I just hate to see her like this, if she gets another job she will leave the place she is currently working in and that will be the end of it. It is just what she has to put up with whilst she is looking.

[LoftyLottie]

ACAS are very helpful and understanding of the emotional side too Traci. Believe me, I know. They won't be keen for her to go down the route of tribunals etc., but they will, if she wants, act as an intermediary between her and her employers, which might pull the employers up a bit.

[Traci66]

Thanks again Lottie, your advice has been most helpful.

[Traci66]

Well she's just got back from seeing the doctor and he has signed her off for two weeks, she is ringing ACAS back tomorrow.

[buildersmate]

One wonders what her contractual benefit to 100% sick pay is. If, for example, an employee has the benefit of six months sick pay before it falls to statutory sick pay (or a lower interim figure - often 50%), one strategy is to do as she is doing - go to the doctor, be signed off for stress, and push the onus back on the employer. It can take ages to get such an employee claiming this back to work - I've been there several times. The last one took 4 months of hassle before we terminated the individual. Even then one has to pay off the contractual notice period.
In my example we had a shirker who we bend over backwards to treat fairly and basically we knew the individual wouldn't come back and wanted to be fired.
Not I'm not suggesting for a minute that your daughter's case is not genuine stress brought on by a poor employer organisation - I'm sure it is based on what you say.
However this is perhaps a safer strategy than trying the constructive dismissal route. As I'm sure you know, one has to resign and claim constructive dismissal. It's a one-way street as there is no way back to the job if one loses the case.

[Traci66]

Thank you for your reply builders mate, she really doesn't want to resign, until the new owners took over she loved her job and is very good at it, the doc took one look at her and signed her off, she doesn't really want to be off, it was my thoughts about constructive dismissal and not hers. She is going to take these two weeks and get her thoughts in order and either return to work or find another job, you were most helpful.

[EDDIE51]

I am asking myself what the motive can be for the employer being so nasty.
I can only think that they want her to leave so she can be replaced with someone who will work for less money. After so many years she must be on a higher pay rate than a new recruit . Are they aware how valuable qualified staff such as your daughter are?

[Traci66]

That's the way it seems to be to me Eddie, since taking over they have got rid of two members of staff, my daughter said that one of them deserved to go but not the other one. The staff there have all worked together for years and are all quite close. Maybe the new owners, who have never owned a nursery before just have different ideas of how things should be done, but as this nursery has been open for more than fifteen years and is successful, hence the previous owner selling up and retiring, they should be taking advice from the staff who know the place and the parents.

[tonywiltshire]

Do the actions of the employer constitute a fundamental breach of a term of the contract, this is a contractual test not a reasonableness test is the action taken by the employer in accordance with the terms of the contract, not has the employer acted reasonably. The employee should only terminate their position if the employer committed a fundamental breach of the contract showing a clear intention not to be bound by those terms.

[MissCommando]

tonywiltshire is right. My husband is making a claim for constructive dismissal but he has written proof that they tried to breach his contract (and 4 solicitors said he's got a strong case). Constructive dismissal is very difficult to prove and it may be difficult in your daughter's case as it's her word against theirs. It's bloody awful the way some employers treat their employees.

You should see if you have legal cover on your household insurance as they'll give you legal advice if you have. Keep us updated!

[Traci66]

Just to update you. Daughter has handed in her resignation, she has no intention of going down the constructive dismissal route. She has been applying for other jobs, she has been offered one as an outreach support worker for teens, one as a career for adults, visiting them in their homes and has an interview later today for a children's home. She seems so much happier in herself and is definitely less stressed, she is currently leaning towards the outreach job, but is going to see what happens with the children's home before committing herself.

Thank you all once again for your advice.