Does anyone know anything about Constructive Unfair Dismissal?

[NotActuallyAMum]

My DP works an horrendous shift pattern and he's been told today that the shifts are going to change early in the New Year. The proposed new shifts are even worse than the current ones and would mean him spending even less time at home than he does now

A work colleague of mine said he'd have a good case for leaving and claiming CUD on the grounds that the forced change of shifts would make his home life difficult and put strain on both our relationship and his relationship with his 13yo dd who lives with us

I've never heard of CUD and would really appreciate any advice

TIA

[Twiglett]

I think its constructive dismissal and personally I'd talk it through with ACAS

think it basically means that he is being forced to resign .. hence they are constructing his dismissal through unfair practices

[tribpot]

I think constructive dismissal and unfair dismissal are two different things. The first one is what could apply to your dp's situation - some advice from the TUC . Is he a member of a union? Are his shifts contained within his contract?

[Freckle]

Constructive dismissal is very difficult to prove, but not impossible. I would suggest that he take his employment contract with him to an appointment with a solicitor specialising in employment law.

He could try CAB, but, unless they have an employment specialist, it is more than likely that they would refer him to a specialist solicitor.

[NotActuallyAMum]

Thanks for your replies

I'll read that link tribpot

He hasn't got a contract, he's been with the Company since he was 16 (now 39). They've had about 5 different owners in his time there but he's never been given a contract. That's not a good thing is it? If he hasn't got a contract they probably can't be accused of breaching it...

[deegward]

You are assumed to have a contract even if you don't sign or have one. It is a legal requirement that everyone has a contract of employement!

[Thinkstoomuch]

I don't think a contract necessarily has to be on paper, it can be in the form of a general understanding of what company practices have always been. I would think that he needs to make a written grievance in the first instance to put his concerns on paper and get a written response (v. important) from them.

[Freckle]

A contract does not have to be in writing, however, the company is in breach of your dh's statutory rights if they have not provided him with a written statement of his terms and conditions of employment.

How long has he been doing his current shift pattern? If it has been years, then it could be argued that his current shifts form part of his contract (normal practice can form part of a contract where there is no written contract) and, therefore, his employers cannot change these shifts without his consent. If they force the change on him, he could sue for breach of contract - or possibly leave and try constructive dismissal.

[NotActuallyAMum]

Think it's been about 6 years he's been doing his current shift pattern. Have to check that with him though but I know it's been a number of years

He is in a Union (don't know which one) but he says they're useless

[tribpot]

Six years is a good fair whack of time, that's good. Even if his local shop steward is a bit rubbish, the union should have a helpline/access to specialist advice nationally. Well worth pursuing this with them, as well as talking to CAB.

[NotActuallyAMum]

I'll find out what union he's in, I'm sure they'll have a website with a helpline number on it. CAB are almost impossible to get through to around here unfortunately

The main thing that worries us is that he doesn't think anyone else will be that bothered so he'll be the only one fighting it

It appears I misunderstood his text earlier, the new shifts are meant to be implemented by the New Year rather than in the New Year, which means within the next 4.5 weeks because they close for Christmas on 22nd December

[helenhismadwife]

Hiya Tia

I dont know anything much about constructive dismissal but was going to suggest you try acas, they have a great website and also a helpline number. I have used them myself a few times and have recommended them to loads of patients

www.acas.org.uk

telephone 08457 47 47 47

hope it helps

Helen

[smittenkitten]

constructive dimissal is when the employer commits the equivalent of gross misconduct, ie: their behaviour is so unreasonable that it is deemed to be a breach of contract and the employee has no choice but to resign in reaction to the behaviour. the fact he doesn't have a written contract is irrelevant. the court (an employment tribunal) would have to decide whether a change in shift goes to the heart of hte employment relationship. I suspect that just wanting to spend more time at home would not be considered a good enough reason to resign, especially if the company needs to re organise shifts for sound commercial reasons. You could contact ACAS for advice or try your union's national helpline if the local reps are rubbish. compensation for contructive dismissal is the same as for unfair dismissal and usually isn't much (av pay out is £3K) so you'd really need to weigh up what your DH would do if he did resign. hope that's helpful.

[squishy]

Also, for constructive dismissal, he would have to take it up with his employers beforehand (ie that he was unhappy) - he couldn't just leave (it has been tested that he could try for constructive dismissal if his letter of resignation constituted a grievance).

It would also depend on the amount of "information and consultation" his employers have given their employees and whether sufficient notice has been given of the change. Does the change mean that they are outside the EU Working time directive? His employers have a duty of care and if they're an IIP employer, will have a duty to promote "work life balance" of their employees.

As others have said, try Union and Acas....good luck