UKC

So I had a holiday booked from 2 years ago, changed last year and then changed to this year. (myself and partner have same birthday, and this year was our 40th and 50th)

Anyway, booked the time of work, including the isolation period(booked and authorised by company) had the test to release as well so back asap.

Holiday totalled 14 days, on day 13 before we left, they put up a poster(just stuck on wall, no email or announcement of new policy) saying they expected no-one to travel to an amber country, If they had done this the day before we could have amended it for free but TUI terms and conditions stated 14days. Anyway they informed me that I would then have to take the isolation as unpaid sick leave...Fine I thought.

Come back and they opened a disciplinary stating that it could be Gross Misconduct for Gross Insubordination.

I immediately handed my notice in, stating that to me it was constructive dismissal, they put me in a position where I felt that I could no longer work for them. 

I requested under GDPR the emails regarding this, they clearly show that senior HR and managers had approved the holiday and I had provided evidence that I could not cancel without losing the whole holiday.

My question is what do I do next, I was 3 weeks away from 2 years service, so I know that a constructive dismissal claim may not be straight forward as its supposed to be 2 years BUT it can be done, is it worth the fight?

I have all the emails, past performance reviews(all outstanding) I lost about 3 months wages and have taken a drop in salary in the role I'm now doing in the interim   while I find a job of similar wage.

Not sure whether to go further and if so whether it would be asking them direct for lost income or tribunal?

Anyone have a better idea than me what I could do?

Thanks

And as FCDO didn't advise against travel. we couldn't claim on insurance etc

Does it say in your contract where you can and cannot go on holiday? I'd say they are operating on very thin ice. 

Or they could argue foreign holidays aren't mandatory, it's no secret that thousands have had problems returning and quarantining, all agencies advise to have cancellation insurance etc.. imagine if everyone in a company did the same and they couldn't operate without staff, hence the notice they put up? Admittedly they aren't being professional about it, but folk having overseas holidays and not coming into work is potentially the ice on the cake of a tough 2 years. 

Yeah its a tough one with that side of things but ultimately I still cannot see how an employer can say where you can go on your holidays outside of work time, without giving you proper notice and giving new contracts that state this etc.

To the OP if you are a member of a union it would be a good time to speak to them and seek advice or hopefully UKC has some HR professionals on here to assist you. 

The OP had booked the time off, including the isolation period, and it had been approved by the company. If he chose to spend 10 days of his authorised time off sat in the house rather than in Blackpool what has that got to do with the company?

Something very odd going on here. 

There i agree.

It's sounds as though they'd changed their policy on overseas holidays, excess time off and unpaid leave, after he'd booked and agreed time off etc.. that's what cancellation insurance is for? If a company can't operate with all staff potentially doubling their absences they are within their right to stop unpaid holidays? A formal letter to all staff might be more appropriate than a notice on the wall. 

Union rep here... Going to try and give impartial advice, based on chances of success.

1. Constructive dismissal claims are very hard to win in a tribunal (though often settled outside).

2. To my mind, immediately handing in notice at the first whiff of a disciplinary rather undermines your case. Constructive dismissal claims succeed when there is evidence of poor treatment - being "managed out" over a period of time, and being in a position where you had no choice. Particularly - claiming constructive d. in your actual notice letter may not have helped.

3. That's unfortunate because unless your  HR policies define "gross insubordination" very strangely, you should have been able to challenge it. Especially as it seems you had permission to take the quarantine as sick leave, you have evidence of that, and so no "insubordination" could be shown to have taken place. If the only announcement of a policy change was a late notice on a wall, all the more so.

4. So whilst the company have acted wrongly, your chances of success might be quite low. They might have been higher if you had let the disciplinary run its course, and been actually dismissed for something which you can demonstrate, with evidence, is unfair.

5. In your next job, join a union so you can get support if something like this happens again. It doesn't matter if there is no recognised union in your workplace, nobody can stop you from joining any union which will take you, and you don't have to tell them about it.

6. Ask yourself whether shite employers like this deserve your services at all.

I think your best bet in this case is to find a solicitor who works in employment law who might write a letter for you. It could be that they would offer you a settlement. Constructive dismissal claims don't pay out massively (I recall around £15000) so I wouldn't get any hopes up that you will get compensation for a huge amount.

I'd also agree with the above poster. My advice above is based on partial information, but it's not legal advice and a solicitor given all the facts and documents might have a different view. You would probably have to risk a few hundred quid on a consultation and then - if they think you have a case - a solicitor's letter to the company, with no guarantee of success, but some likelihood that an informal settlement might be reached. If you go that route, choose an employment law specialist. If you're already a union member, your union would normally pay for this.

Is this truly a full and unbiased account?

"agreed to take unpaid leave"..."opened a disciplinary"- lots of missing steps.  Agreed with whom?  Do they dispute "agreed"?   Sounds as if they believe they said "no"...and you went anyway.

"immediately handed notice in" - WHY?  You would have a discussion about the above.

Sounds to me like their account would read differently and also that your relationship with them was strained already.  I very much doubt you'd win a tribunal. 

You may also have buggered up your chance of a decent reference.

You could apologise and ask for your job back on explanation that there was a misunderstanding over what was agreed.  Failing that, use the discussion of tribunal to agree a reference, but I think that's all you'll get.

Agree

Agree

Agree - if that is actually what happened, and all that happened, which I doubt

This smells wrong to me.  Companies are generally not idiots and if they have agreed something they don't launch disciplinaries.  I think OP has decided to interpret something as agreement, when it was nothing of the sort

Don't agree...or rather I might if it wasn't for this:

Ask yourself what's more likely - that the OP has given a full and impartial account or that the obvious likely scenario is what happened.

Some (most?) solicitors will give a free initial consultation so it might be worth doing that. But... my understanding is the OP has now left and had less than two years service so it's very unlikely any claim would succeed (unless there's a suggestion of discrimination based on race/gender etc, but even that would be hard).

I think this is one of those situations where you need to sit down and figure out what you actually want. I suspect the OP's energy would be better spent finding alternative employment.

Best option now. Forget it and move on. You need to balance the stress and angst this will give you vs the small chance of an outcome you are happier with.

Chances are this won't happen to you again, but either (a)it's a small company without real HR understanding, but in these cases "common sense" usually resolves things or (b)they do have proper HR, in which case the first step is to speak to them and get a full account of the issue, read the company handbook, talk with a colleague if not part of a union.

Dismissing someone, especially in the current climate, is a massive step - something I would really avoid over something that is unlikely to be repeated. In fact I would go to more effort to fix a problem than be caught with a vacancy to fill at any time. Either the company is crap or you've been a little economical with the truth. Either way you're better just moving on.

In my reply, I was choosing to take the OP at face value in saying that the additional leave had been approved. You may of course be right in questioning that account, but I don't see  enough evidence either way. 

The main thing we agree on is that the mechanism for challenging it would be first the disciplinary process itself, and in quitting immediately, the OP has not helped their case, because they had not exhausted the avenues to challenge unfair treatment while still in post.

If they had been a union member, a rep could have given them that advice before it got to that point, accompanied them to the disciplinary, etc.,. Agree the best option is probably now to focus on finding a decent new job and not raking it over.

Speaking as a recently retired union rep, your point 1 although true is a misrepresentation as in a big majority of claims they either settle or the claimant gives up (through stress or cost reasons), overall the employer has to provide compensation in the majority of formal claims. Some detailed analysis can be found here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/...

To people who end up in serious work disputes in future, I'd say never resign until you know your rights and the process required to be followed; as detailed by ACAS (the Government pages, CAB etc):

https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal

This usually involves issuing a grievance before resignation and conciliation at ACAS before a tribunal claim is undertaken.

Tribunals don't happen quickly and awards are generally quite low, unless there is discrimination identified; so the claimant needs to be robust for a long period of time.... normally claimants and employers settle.

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunal...

Unions seem expensive to some until they face the costs, time and stress of dealing with employment problems... that's the insurance part of membership...they also negotiate collectively and defend workers collectively and strive to improve employment rights for all.

There is plenty of case history out there showing some employers (as well as some employees) can be idiots.

Just walk my friend. And don't look back. You need a pro bono lawyer if you're going to win. And that may only turn out to be a moral victory. Definitely join a union in your next job but then again don't expect too much as unions tend to be very pragmatic in these cases` and they will have vast experience of getting nowhere with them.

Negotiating employment injustices is like dodging rolling boulders; just get out of the way and shout "bastard" as they roll past. 

(Bitter experience.)

Agree entirely - have a like

No it was pretty much exactly how I described, no previous history of Issues, in fact as part of the GDPR request, they sent my past performance reviews, all outstanding.

The holiday and and Isolation were approved, in full knowledge of the fact it was travelling to an amber country. When HR sent out the poster (18/06) holiday was booked for the 02/07 and the poster didnt go up till 21/06) to sites to be displayed, my manager sent an email confirming policy as in their own words(I have the emails) 'We have authorized this holiday and he is certain to question it'

I went to management and HR about my concerns before the holiday and they asured me that the only change for me would be the fact that it is now unpaid and not holiday.

I returned on the 19/07

On the 21/07 they opened a investigation into the possibility of disciplinary

On the 28/07 they requested details from me as to why I could not change the holiday, I sent them the tui documents that stated if it was cancelled between 14-0 days before departure that I would lose all money, and also the policy that I could have amended 14 days before if I had wanted to(Which I would have done, but the policy change they have put was under this 14 days)

On the 09/08 they sent me a letter saying it was going to disciplinary etc as it amounted to Gross Misconduct.

I left on the day as in the prior 2 weeks, every time I had queried the status they assured me that it was all ok and not to worry. I had rasied the issue that the waiting and not knowing was causing me anxiety and stress(over 3 weeks to decide on action seemed excessive)

I could not continue to work for them when they had made false promises that all would be ok, and when requesting the TUI cancellation policies it was almost insinuated that I was lying. They could have very easily found this information themselves. AND I was open and honest throughout the whole process as I had requested that I use the holiday for isolation AND paid for the early test to release

I have spoken with ACAS and they are looking to conciliation

I am not after loads of money from them, just enough to cover the wages I would have had.I have since found a better job but its more about they have a history of steam rolling issues in the workplace and I wont allow it to happen to me 

If you have found a better job than I would just move on. It will only be you who gets wrapped up on the in s and outs , your past employer will not care and nor will it cause them any grief.

Burying something like this can often the best way forward.It will only be you who bears the grudge.

Yeah I think that may be the way forward, see what ACAS advise and then leave it. Just annoying as one of the biggest distribution companies in the UK and they have a history of being like this and more people that don't confront these issues the more they get away with it.

Oh well, onwards and upwards

I disagree with neil. It's perfectly possible for many people to follow justice to its conclusion as well as getting on with their life. It's a satisfying outcome to hold a bad employer to account and it will be a genuine hassle for them as they will be paying for lawyers and wasting HR time.  The only reason to give up is if it is affecting your life in a negative way. The reason too many companies still do bad things is too many unfairly treated workers don't chase their rights. It's almost pain free if it's an early settlement arranged through ACAS. Like any negotiation, stay calm and avoid getting greedy. If the company are stubborn and won't settle at all, the chances of them winning drop a lot. So in that case don't panic or worry: be confident and patient. It's rare for big organisations to go to tribunal with a poor case as they end up with very bad publicity. They often delay an offer to just before the arranged tribunal date as many claimants just give up.

I have been there, done it....it can ( as a few other postesrs suggest) burn away at you.

Unless you have a union to take away that strain from you all it really does is eat away at you.

You come from a highly unionised environment, and so its easy for you on a personal level.

The fact that the poster is even posting all this stuff suggests its already moved to the "eating away at you" stage.

As somebody else says shout " bastards" and move on, the faster the better.Bury it.

The latest incredible example of how idiotic some organisations can be.

 https://www.bbc.co.uk/news/uk-scotland-58815920

I'm going to go against the tide here - I don't understand why you handed your notice in rather than making your case in the disciplinary hearing and awaiting the outcome of that. Given what you've said, it would be unlikely that their case would have been proven, so you could all have moved on. Instead it appears from what you've written that you had a flounce, and are now angling for a constructive dismissal payout, which I can't see having much chance of success as you failed to engage reasonably with your employer. 

I'm determined when dealing with the genuinely unfairly treated. I've been there helping individuals (from cleaners to senior management) at my work and some completely outside my work, including a few who were let down on legal support by my union. By far the majority 'won' (a big majority of then settled, often with an NDA) with union help, or with independent lawyers, and a few on their own (with help from Citizens Advice, family, friends etc).

If it's 'eating you up' that's clearly something affecting your life negatively and you need to drop it. Different people respond in different ways and for some it's just 'a day at the office'. Even someone I regarded as a bit of a unstable fantasist, who ended up with no award from the tribunal, managed to achieve his key aim of criticism of a particular unfair policy (which then got changed).

That's not against the tide. Its aways best to suss out your rights and plan based on the best advice, before you resign. 

Because they had assured me it was just a formality in the weeks between the initial investigation and the decision to go to disciplinary, because they had agreed the holiday, because they then cancelled it, just days before we were due to go, because the HR department rep who I had spoken to beforehand and told me that I had done nothing wrong, because I was open and honest about it all and they quite frankly just don't give a hoot about employees. Why should I have continued to work for a company that treat people like that. And I'm not angling for anything except the acceptance that they are wrong. I worked hard for that company all through pandemic and before and always went the extra mile and they roughshod over all.

We don't have unions there as people that have suggested it previously have then been given duties that then made then seek employment else where. It actually gave me the kick up the ass to go get a job where I'm valued.

I'm at an age now where as before in workplaces I put up with shoddy behaviour and now I'm not going to

Interestingly I just found the tribunal service webpage where you can search by company, in 2021 so.far they have had over 10 cases and all settled or judgement against them so its not just myself

So on that basis I should just let them drag me through the stress and drama of a disciplinary procedure and when nothing comes from it just carry on giving extra effort at work

To be clear, the holiday and isolation were agreed, 12 days booked and approved, no discussion about the cancellation, just verbally told one day that 'oh by the way the isolation is now going to be sick pay'

This was also just 8 days before I left on holiday, so they effectively cancelled the agreed holiday and not within the time frame they should have. 

I did everything I could from the moment of amending the holiday, kept them fully informed and engaged with them about all aspects

They made a 'policy' change and state that the poster was the company communicting their policy(yet when the policy for anything else has changed in the past they have had us sign documents to that effect)

I dont want a financial payout, although being completely honest I wouldnt say no. I want then to accept that the way they handled it is incorrect and to hopefully prevent others having the stress

Yet if you received advice before resigning you might have acted differently on the same views.

There is no such thing as 'we don't have unions', only that your workplace has no formally recognised unions. As an individual you can be a union member and receive individual help from them.... they just can't collectively bargain or otherwise engage in your workplace (eg, recognised union involvement is compulsory in any work H&S committees).

I also have sympathy for the business.Most seemd to view isolation as sick pay or even unpaid leave.

What would have happened if your holiday country had moved to Red within that timeframe?There were too many Covid issues going on for any business to keep uptodate whether it was HR or H& S.

Covid presented HR and businesses with daily challenges, holidays being one of them , being fair to all employees whilst protecting the business was never going to be easy..It was horrenedous.For large companys, not much fun, everything having to be decided on the hoof almost and then changed and changed again.

Irrespective of that you have moved jobs hopefully for the better.

You're better than such whataboutery. People are entitled to do what they want with their free time. If it has subsequent work consequences they will need to be faced when they happen, not when assuming what might happen (no one would employ a climber on that basis). Cfer's case, as made here, is about how the company actually behaved, not on any need to make properly communicated reasonable adjustments to leave based on some genuine emergency.

Interestingly I just found the tribunal service webpage where you can search by company, in 2021 so far they have had over 10 cases and all settled or judgement against them so its not just myself

Bloody hell, that in itself suggests an incredibly gung-ho and incompetent HR director, who is costing the business a fortune, and should be fired, and a generally toxic workplace culture which you're probably better off out of.

It also suggests a company which won't settle quietly, but will force you down the tribunal route - which could be very draining, stressful, and expensive, if you don't have a union paying your legal fees.

As I said, from a union rep perspective: I don't doubt your account of things, but I think you  shot yourself in the foot by handing in notice before going through the disciplinary process - and leaving of your own accord without trying to negotiate a settlement. So it will be difficult to get compensation, and having seen the toll this kind of process can take on people, it might be better for your own peace of mind to drop it and move on.

There is no such thing as 'we don't have unions', only that your workplace has no formally recognised unions.

So important to say this. It's such a common misconception that you can't join a union or can't get help from one, if there is no formal union recognition in place where you work.

You can join one; you can get a union official in to represent you whether the company likes it or not (it is covered under your statutory Right to a Companion in a grievance or disciplinary process); and it is illegal to discriminate against someone on the basis of being in a union (or not being in one).

"Companies are generally not idiots..."

In the light of this lot letting 10 cases get as far as an employment tribunal this year and losing all of them, it seems that some companies are, in fact, idiots.

There are too many whatabouterys , drawing a conclusion in favour of the employee when not hearing the other side being one of them.

Well if the company employs say 20,000 people and there is a resonable turnover of staff, its possibly inevitable.Any HR perosn will tell you there are always difficult ongoing issues to be managed.

If it was a company with 20 employees, then yes its a reasonable conclusion they are idiots and you should not work there.

HR Director here...

I've not had to deal with any that got all the way to a tribunal, but, if you are offered arbitration, take it.

Last case I dealt with an employee had been off sick for a year. He wanted to come back to work but our third party medical report said he wasn't fit to return to work. We wanted to offer a settlement agreement to terminate his employment. He resigned, then brought a constructive dismissal case but turned down arbitration. Then, before it got to a tribunal, he asked for a settlement agreement, which was for a lot less then we had initially intended to offer. If he had gone to arbitration he would have got more money. 

Agreed. He would have been able to gather more evidence of bad treatment, which would have made for a better case.

Completely agree. Especially with them bringing in a new policy with immediate effect, not considering that some people would not be able to make the decision not to travel without incurring needless expense. That's just ridiculous. I'm assuming there was no feasible way to work at home during isolation? 

Again I agree.

I've limited experience here, I've not had to deal with a union rep in over 25 years. The union where my partner works (public sector) are completely useless though.  

They definitely don't. This wouldn't have happened at all in my business because we're not stupid enough to treat our people in such an arbitrarily stupid way!

I've limited experience here, I've not had to deal with a union rep in over 25 years. The union where my partner works (public sector) are completely useless though.  
 

Hmm. Not claiming all unions are beyond criticism, but how would you know this? In the kind of case the OP raises, aren’t most settlements covered by NDAs now ( at the employers’ insistence)?

In the last 15 years at the company where I'm a rep, employing 1200 people or so in the UK, I think there's been one case that actually went as far as a tribunal. Sorry but ten tribunal cases so far in 2021, all of which the company lost, is evidence of atrocious HR management, even in a company employing 20,000 people.

As I said limited personal experience. In my day job as an HR director I've never had to deal with a union rep. That's not because we discourage trade union membership either.

But my partner has been treated very shoddily by her employer (similar to the op being told something was ok, then being called into a disciplinary process), and going to her union rep made no difference. Perhaps I should have made it clearer what I meant.

Ah - fair enough, and I’m sorry to hear that. I’ve also come across a workplace rep who wasn’t much use. But in that situation (and I mean no hindsight criticism of your partner here) it should be possible to contact the union higher up the chain- branch secretary, regional officer etc.

For the record, I’ve also had the pleasure of dealing with HR staff who were as constructive as it sounds you are.

Had a call from ACAS and the company are prepared to go to conciliation, so she asked what I wanted. I've requested my notice period paid and reference that reflects my performance reviews so hopefully that sees an end to it all.

Thanks for the advice all 

Thanks, I appreciate that. I'm not a natural HR person. I've generally despised HR people in every company I've been employed at. So when the business I part owned got to be of a size that we needed to 'do HR' it was a bit of a surprise that my co founders suggested i was therefore ideally suited to it. It's worked pretty well though!

I forgot to add, my partners situation worked out OK in the end. As is often the case, there was just a disconnect between what line management had told her, and HR jumping in with their 'policy', which was inappropriate to the circumstances and, in my opinion of questionable legality.

I was in a management capacity and had attended all the training on the issues and policies. I thought HR were there to ensure policies were adhered to. I now know that they are there to fix it for the employer and to make it look like policies are being adhered to. The one thing bosses don't want to say is that they were wrong. Which is why they pay out fortunes on settlements and NDAs.

Don't expect justice/vindication. Just ask how the issue is affecting your climbing. 

Good news about ACAS support and good luck with it. I don't think I'd twigged earlier that they'd actually withheld pay for your notice period after you handed in your notice, and my advice to drop it might have been different if so: on that specific issue, I don't think they have a leg to stand on (unless you were actually asked to work your notice and refused).