Constructive dismissal = mutually assured destruction?
March 4, 2010 10:13 PM Subscribe
Filing for constructive dismissal - how much of a bad idea?
First up: I'm not looking for legal advice - I'm doing that separately, I'm looking for perspectives on the implications of a constructive dismissal claim on future employment prospects. I'm in the UK, but my company does business worldwide if it makes a difference. My "replacement" is based in the US.
I'm a department head in a small consulting firm. I believe I have a very strong case for constructive dismissal (a wide range of reasons, the cherry on the cake being that someone else has recently been hired to do my job, or at least with exactly the same job title [can't have 2 heads, eh] - they haven't yet thought to tell me about it, I found out by accident while doing some web research about my company). I'm engaging professional legal advice to explore my options.
This is the latest in a long line of humiliations. The working environment is toxic for everyone, not just me, and I would love to be out of here. I'm simply very uncomfortable with the potential harm to my future career prospects that would be caused by a claim of this type. I don't expect it would make me rich (max possible claim is the equivalent of about 9 months salary, and in a depressed market in my niche industry I don't expect it to be a quick and simple process to find alternative work).
As I see it my options are:
1. Resign on principle, try to negotiate a better than average departure and hope for the best (scary - some cc debt, no savings, big mortgage, 2 kids and another on the way)
2. Leave immediately and claim constructive dismissal (pending legal advice), hope for an award that can tide me over long enough to resolve mortgage and replacement work fears
3. Take it on the chin, coast at work while looking for another job.
I'm leaning towards (3), but I also tend to be a bit of a coward. I think on principle I probably ought to be pursue constructive dismissal, but I am terrified that this will kill my career prospects. Family situation is such that I'm not in a good place to gamble with income.
So, that's a bit of a screed rather than a question. My question is: has anyone here claimed (won or lost) constructive dismissal? How did it affect your career? With hindsight would you have done things differently? How? Any other first / second hand insight or advice, from either prospective employee or someone with responsibility for hiring / vetting new staff.
email: throwaway761@googlemail.com
First up: I'm not looking for legal advice - I'm doing that separately, I'm looking for perspectives on the implications of a constructive dismissal claim on future employment prospects. I'm in the UK, but my company does business worldwide if it makes a difference. My "replacement" is based in the US.
I'm a department head in a small consulting firm. I believe I have a very strong case for constructive dismissal (a wide range of reasons, the cherry on the cake being that someone else has recently been hired to do my job, or at least with exactly the same job title [can't have 2 heads, eh] - they haven't yet thought to tell me about it, I found out by accident while doing some web research about my company). I'm engaging professional legal advice to explore my options.
This is the latest in a long line of humiliations. The working environment is toxic for everyone, not just me, and I would love to be out of here. I'm simply very uncomfortable with the potential harm to my future career prospects that would be caused by a claim of this type. I don't expect it would make me rich (max possible claim is the equivalent of about 9 months salary, and in a depressed market in my niche industry I don't expect it to be a quick and simple process to find alternative work).
As I see it my options are:
1. Resign on principle, try to negotiate a better than average departure and hope for the best (scary - some cc debt, no savings, big mortgage, 2 kids and another on the way)
2. Leave immediately and claim constructive dismissal (pending legal advice), hope for an award that can tide me over long enough to resolve mortgage and replacement work fears
3. Take it on the chin, coast at work while looking for another job.
I'm leaning towards (3), but I also tend to be a bit of a coward. I think on principle I probably ought to be pursue constructive dismissal, but I am terrified that this will kill my career prospects. Family situation is such that I'm not in a good place to gamble with income.
So, that's a bit of a screed rather than a question. My question is: has anyone here claimed (won or lost) constructive dismissal? How did it affect your career? With hindsight would you have done things differently? How? Any other first / second hand insight or advice, from either prospective employee or someone with responsibility for hiring / vetting new staff.
email: throwaway761@googlemail.com
IANAL but don't you actually have to be dismissed to claim constructive dismissal?
posted by handee at 11:28 PM on March 4, 2010
posted by handee at 11:28 PM on March 4, 2010
I'm in Canada, and I spoke to a lawyer about my own concerns of constructive dismissal. In practical terms, claiming constructive dismissal is just not possible in Canada any more - if an employer doesn't like you, they can get rid of you - and in the cases that people do successfully claim for constructive dismissal, they need a lawyer.
On the other hand, you can be either fired for cause in Canada, or you can be laid off. If you're fired for cause, you do not get a settlement. If you are laid off, you receive a settlement, usually a month of salary for every year you have worked, above and beyond the mandatory 3 week severance package, and your age and job title also factor in.
I'm assuming Canada and the UK are going to be fairly similar (but not identical).
Having been there, I would stick with option #3, after shelling about the equivalent of $200 to talk to a lawyer, who will probably tell you that constructive dismissal is probably not an option.
posted by KokuRyu at 11:38 PM on March 4, 2010
On the other hand, you can be either fired for cause in Canada, or you can be laid off. If you're fired for cause, you do not get a settlement. If you are laid off, you receive a settlement, usually a month of salary for every year you have worked, above and beyond the mandatory 3 week severance package, and your age and job title also factor in.
I'm assuming Canada and the UK are going to be fairly similar (but not identical).
Having been there, I would stick with option #3, after shelling about the equivalent of $200 to talk to a lawyer, who will probably tell you that constructive dismissal is probably not an option.
posted by KokuRyu at 11:38 PM on March 4, 2010
IANAL but don't you actually have to be dismissed to claim constructive dismissal?
No. Constructive dismissal is when you create conditions that make continued employment unfeasible-putting someone in the corner office with nothing to do for months to indicate you want them to leave, for example.
posted by rodgerd at 12:27 AM on March 5, 2010
No. Constructive dismissal is when you create conditions that make continued employment unfeasible-putting someone in the corner office with nothing to do for months to indicate you want them to leave, for example.
posted by rodgerd at 12:27 AM on March 5, 2010
Not a personal answer, but have you tried Citizens Advice? I used to work for a UK organisation with an employment law helpline targeted at employers; if an employee ever phoned, we referred them to Citizens Advice.
posted by Infinite Jest at 12:35 AM on March 5, 2010
posted by Infinite Jest at 12:35 AM on March 5, 2010
I have been involved with several constructive dismissal complaints, on the employer side.
Trust me --- you do not want to ever sue your company for constructive dismissal: it's expensive, it'll take too long, it'll damage your employability and it is very hard to win. However, you may want to bluff your company with the implied threat of a constructive dismissal suit.
You do that by sending your head of HR (or equivalent) a letter telling them that you feel you have no choice but to leave your position, and that your last day will be (x). Your lawyer should draft the letter for you. It shouldn't use the word resign, it should make it clear that this is something you regret and feel forced into, and it should say why. It should echo the language and concepts of constructive dismissal, but not use the phrase itself. And it should ask what kind of severance package the company is willing to offer you.
Before you do this, you need to be sure you are prepared to quit, because once you send this letter you can't stay.
Your HR person will involve the company's lawyers, and if you are lucky the company will be frightened enough to offer you a severance package. This is likelier if your company is big, mature, reputation-sensitive, if you have been there a long time, if they feel guilty about how they've treated you, if they have a lot of money, and/or pride themselves on taking care of their employees. It is less likely if the company is small or struggling, has high turnover or a dog-eat-dog mentality, and doesn't mind being dragged through the mud.
If you handle it this way, you won't need to worry about your reputation, unless you're in an extremely small and tightknit industry.
posted by Susan PG at 12:55 AM on March 5, 2010
Trust me --- you do not want to ever sue your company for constructive dismissal: it's expensive, it'll take too long, it'll damage your employability and it is very hard to win. However, you may want to bluff your company with the implied threat of a constructive dismissal suit.
You do that by sending your head of HR (or equivalent) a letter telling them that you feel you have no choice but to leave your position, and that your last day will be (x). Your lawyer should draft the letter for you. It shouldn't use the word resign, it should make it clear that this is something you regret and feel forced into, and it should say why. It should echo the language and concepts of constructive dismissal, but not use the phrase itself. And it should ask what kind of severance package the company is willing to offer you.
Before you do this, you need to be sure you are prepared to quit, because once you send this letter you can't stay.
Your HR person will involve the company's lawyers, and if you are lucky the company will be frightened enough to offer you a severance package. This is likelier if your company is big, mature, reputation-sensitive, if you have been there a long time, if they feel guilty about how they've treated you, if they have a lot of money, and/or pride themselves on taking care of their employees. It is less likely if the company is small or struggling, has high turnover or a dog-eat-dog mentality, and doesn't mind being dragged through the mud.
If you handle it this way, you won't need to worry about your reputation, unless you're in an extremely small and tightknit industry.
posted by Susan PG at 12:55 AM on March 5, 2010
Why don't you just ask your boss why someone else is on their website with your job?
posted by gjc at 3:58 AM on March 5, 2010
posted by gjc at 3:58 AM on March 5, 2010
IANAL but don't you actually have to be dismissed to claim constructive dismissal?
No. Constructive dismissal is when you create conditions that make continued employment unfeasible-putting someone in the corner office with nothing to do for months to indicate you want them to leave, for example.
It's not even that. It's giving secretary duty to an analyst or the manager picking the most petty of complaints (you're 5 minutes late) and picking a fight about it so you're insubordinate. I have two experiences (not both me) where someone was constructively dismissed.
It doesn't go anywhere and nobody in the system really cares. The dishonest ones (don't talk to the rights and responsibilities person in HR because they work for the company) will tell you it's no big issue to stop you. The honest ones will tell you how small it is compared to the more massive claims that they see go to court.
Managers can control how you look to everyone. If they feel like stirring things up to make you look bad or ignoring you to make it look like you know nothing they can do it.
It's a big waste of time to claim CD in my opinion, unless you've actually been fired already or unless the process is free. I went through the process a waited for 6 months and pretty much nothing came from it. I was still working there (but had moved to another manager) and I think the only thing I did was cause a lot of secret resentment from the administration. I don't think it would carry over to the next job but I suppose it depends on how chatty your industry is.
But unless they were OVERTLY biased towards you they can play dumb all day. But if they want to say you're 3 minutes late everyday or that this other position is somehow NOT the same position then it will go on and on and you risk getting caught with the lingering emotions and a lot of wasted time. Don't do it because you're right and they're wrong.
I'm in Canada.
posted by Napierzaza at 5:00 AM on March 5, 2010
No. Constructive dismissal is when you create conditions that make continued employment unfeasible-putting someone in the corner office with nothing to do for months to indicate you want them to leave, for example.
It's not even that. It's giving secretary duty to an analyst or the manager picking the most petty of complaints (you're 5 minutes late) and picking a fight about it so you're insubordinate. I have two experiences (not both me) where someone was constructively dismissed.
It doesn't go anywhere and nobody in the system really cares. The dishonest ones (don't talk to the rights and responsibilities person in HR because they work for the company) will tell you it's no big issue to stop you. The honest ones will tell you how small it is compared to the more massive claims that they see go to court.
Managers can control how you look to everyone. If they feel like stirring things up to make you look bad or ignoring you to make it look like you know nothing they can do it.
It's a big waste of time to claim CD in my opinion, unless you've actually been fired already or unless the process is free. I went through the process a waited for 6 months and pretty much nothing came from it. I was still working there (but had moved to another manager) and I think the only thing I did was cause a lot of secret resentment from the administration. I don't think it would carry over to the next job but I suppose it depends on how chatty your industry is.
But unless they were OVERTLY biased towards you they can play dumb all day. But if they want to say you're 3 minutes late everyday or that this other position is somehow NOT the same position then it will go on and on and you risk getting caught with the lingering emotions and a lot of wasted time. Don't do it because you're right and they're wrong.
I'm in Canada.
posted by Napierzaza at 5:00 AM on March 5, 2010
Look into the options for reaching a compromise agreement with your employer. Some years ago, I had grounds for claiming constructive dismissal. Rather than doing so, I explained the situation to my employer and offered to negotiate. End result: I left with a good financial settlement and an agreed reference, employer avoided the costs and risks of an employment tribunal. Both parties win.
You'll need a solicitor who specialises in employment law, but part of the deal is that your employer pays for your legal advice.
Of course, all this depends on you having a strong case in the first place
posted by genesta at 12:21 PM on March 6, 2010
You'll need a solicitor who specialises in employment law, but part of the deal is that your employer pays for your legal advice.
Of course, all this depends on you having a strong case in the first place
posted by genesta at 12:21 PM on March 6, 2010
This thread is closed to new comments.
She ended up with a substantial settlement from her former employer. She was in a new job comparable to her old one in very little time indeed, and it didn't seem to hurt her career at all.
That said, I'd want a good, reputable lawyer to evaluate my chances as the first step.
posted by rodgerd at 11:23 PM on March 4, 2010