Constructive Dismissal

[steven100]

If RM press ahead with all the changes and impose there changes without the backing of the union.
Do u think RM employees will have chance of going down the route of constructive dismissal?

Hopefully common sense prevail on RM side.

[Tman]

No, not a chance.

[iHateD2Ds]

You mean if an employee says no to the changes and is dismissed?

Depends on how the change would affect the person's individual circumstance

[steven100]

Yep I sort think I’ll will down to individual circumstances.

[Woody Guthrie]

It depends on which changes and how they're implemented.

Later hours and sunday working would be the best option, changes to working hours and especially sunday working are common in constructive dismissal cases especially where disruption to childcare is concerned, as this predominantly affects female employees it can also lead to discrimination cases.

Another potential issue may be the flexi-hours proposal since it may enforce compulsory overtime which requires an agreement.

There are huge legal risks in implementing major changes without agreement so its kind of a last resort for most sensible employers.

[Nickvilla20]

It depends on which changes and how they're implemented.

Later hours and sunday working would be the best option, changes to working hours and especially sunday working are common in constructive dismissal cases especially where disruption to childcare is concerned, as this predominantly affects female employees it can also lead to discrimination cases.

Another potential issue may be the flexi-hours proposal since it may enforce compulsory overtime which requires an agreement.

There are huge legal risks in implementing major changes without agreement so its kind of a last resort for most sensible employers.

Sadly I don’t think Royal Mail are a sensible employer. I do think though they know they won’t get everything through that they want to so they are just throwing everything in a see what’s sticks.

[noggin1969]

Another potential issue may be the flexi-hours proposal since it may enforce compulsory overtime which requires an agreement.

There are huge legal risks in implementing major changes without agreement so its kind of a last resort for most sensible employers.

[Woody Guthrie]

3. Unilateral variation of contract – without consent
Where an employee is not willing to accept the proposed changes, an employer may choose to impose it on them as a unilateral variation of contract. This is a risky process for an employer to follow for the reasons outlined below:

3.1. Continuing to work under new terms
If an employee is not willing to accept a proposed change but the employer imposes it on them anyway, and the employee then continues to work under the new terms and conditions without making their objections known to the employer, after a period of time (usually months rather than weeks) the employee could be deemed to have impliedly accepted the change, and it would then be incorporated into their contract of employment. Exactly how long an employee must have continued to work before being deemed to have impliedly agreed depends on the facts of each case.

Employers should not assume, however, that an employee has accepted a change just because they have not specifically objected. This is especially the case regarding changes that do not affect the employee for some time, such as changes to sick pay, maternity pay or redundancy entitlement.

Example:

In the case of Rigby v Ferodo (1988), wages were cut by 5% to prevent closure. Rigby made it known that he did not accept the reduction but continued to work for over a year. He then claimed the amount he had lost (£30 a week) during that period. The House of Lords decided there had been a repudiatory breach of contract by the employer and the employee was entitled to claim his shortfall in full.

This case illustrates that continuing to work is not sufficient to constitute an implied acceptance of the variation, and wages reduced without consent meant that employees were entitled to claim the full amount of their continuing loss.

3.2. Working under protest
If the employee works under the new terms and conditions but under protest, in which case there is no acceptance by the employee, the employer would still be in breach of contract and the employee can issue a claim for this breach.

If the breach of contract is sufficiently fundamental, the employee could resign as a result of the breach and claim constructive unfair dismissal before an employment tribunal (assuming they have the necessary qualifying service) as well as pursuing a breach of contract claim. There will be a limit on the time an employee can continue to work under protest and keep open the option of resigning and claiming constructive dismissal. An employee may also claim that there has been an unauthorised deduction from their wages if the change affects pay.

As mentioned, apart from employment tribunal claims, an employee can bring a claim for breach of contract, but in a civil court. They will have six years from the date of the breach as long as the employee has made it clear that they do not accept the terms and are working under protest.

3.3. Refusal to work to the new terms
An employee who refuses to work to the new terms will force the employer to either consider dismissal (with the employee able to bring a potential unfair dismissal claim) or else allow them to continue on their existing terms.

[Dorset Plodder]

Woody IF Royal Mail manage to force through some of their more draconian changes, and insist staff sign new contacts, we could hypothetically have thousands of staff not willing to sign those new contracts.

Do you fell there might be enough ammunition for the CWU to take a Class Action against Royal Mail, or is it more likely to be a "Divide & Conquer" scenario? Asking for a friend.

[redlen]

Why does the CWU not simply take action in the civil court for breach of contract referencing the expressly implied legal undertakings in the Agenda For Growth Agreement?

Only 5% of Constructive Dismissal claims upheld at tribunal.

[Tman]

Probably don't want to risk the high costs and long time such actions take in the legal processes.
We had a similar unwanted shift change scenario some years back, and the legal advice then was that ultimately the employer has the fundamental right to alter employee's T&Cs, and as long as enough notice is given (three months was quoted at the time) and allowances made as far as practical then there's nothing to stop the employer going ahead.
Talk of court action and mass resignations is BS though. Never going to happen.

[Woody Guthrie]

Why does the CWU not simply take action in the civil court for breach of contract referencing the expressly implied legal undertakings in the Agenda For Growth Agreement?

The legal obligations are specifically null and void if Royal Mail can show that they undermine the financial sustainability of the company.

Basically they are not worth the paper they are written on and never have been, I think we pointed this out at the time.

Only 5% of Constructive Dismissal claims upheld at tribunal.

That's an example of lies, damn lies and statistics.
Roughly the same number are won by the respondent.

Around 20% are settled before judgement.
The rest are struck out for either not following the process properly or the claimant simply dropping their claim.

[jessicarabbit]

Why do TP et al thump the table and talk of legal protections when we all know a Tory judge would throw every claim out in a heart beat. Wish they would be a bit more honest with us. We are grown ups after all. I guess "We've secured a deal for the next 3 years which the employer can pick and choose which bits it wants to adhere to" doesn't have the same ring to it.

[k979aaa]

Why does the CWU not simply take action in the civil court for breach of contract referencing the expressly implied legal undertakings in the Agenda For Growth Agreement?

The legal obligations are specifically null and void if Royal Mail can show that they undermine the financial sustainability of the company.

Basically they are not worth the paper they are written on and never have been, I think we pointed this out at the time.

Only 5% of Constructive Dismissal claims upheld at tribunal.

That's an example of lies, damn lies and statistics.
Roughly the same number are won by the respondent.

Around 20% are settled before judgement.
The rest are struck out for either not following the process properly or the claimant simply dropping their claim.

The only people who are undermining the financial sustainability of the company are the CEO and the Chairman and it's an absolute s**t show how to run a business sorry but it is!