Could my Employers actions be considered a form of Constructive Dismissal?

Question: My employer has always had a policy with me of paying a whole days pay when doing nights out and having to sleep in the cab when things go wrong. To be clear, these are unplanned nights out, as a posed to planned night shifts.

The agreement that my company had with me was that if any of us had to stay out for the night, returning to the depot the following morning. They were entitled to receive full pay for that day; be it half an hour or 8 hours, they still got paid for the whole shift that day.

This has always been the case for as long as I remember, that is until recently when I found myself staying out overnight and found out a week later that they had only paid me for 2 hours the following day. This was effectively docking my pay without any prior notice.

I now feel that the situation is untenable as I’m worried that if I get stuck out again through no fault of my own the same, I will effectively be out of pocket as I will not be paid for the full day as I was before. What can I do?

Answer: Constructive Dismissal is a form of Unfair Dismissal; you will need to decide which of the two you would go for as each of them; Constructive Dismissal (CD) or Unfair Dismissal (UD) has its own level of remedy, compensation etc.

Your employer must have breached the contract that they have with you – by reducing your status or salary – or the implied terms of – mutual trust and confidence – i.e duty of care.

You must be alert to the fact that if you accept the conditions (you disagree with) for a period of time, say 6 to 10 weeks or more then you cannot go for Constructive Dismissal or Unfair Dismissal.

Your first post of call should be to check your employment contract, if there is a breach by your employer, then you should point this out – in writing – to them. If there is no change to your employment contract, then you will have to resign from your job before you can start a challenge for Unfair Dismissal. You need to decide if this is something you wish to do and to take further.

Consult Hylton-Potts, the experts who offer fixed fees, and give excellent value.

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