technician assaulted?

[paulears]

I thought you'd like to read this - posted on a business forum by somebody asking about constructive dismissal.

Is this a cause for constructive dismissal

I have just been asked by a friend to be with him at a meeting at his work tomorrow. He has been working for the firm for 4 years and 11 months and 5 days. He has felt for some time that they are taking the piss. He is a technician at a holiday resort. He is timetabled to work a 48 hour week. He is normally timetabled to finish at eleven at night (and back in at 9:30). On weekends (if timetabled) he is scheduled to finish at midnight.

What always happens is the show finishes at eleven (and sometimes overruns) and he then has to close down and then lock up. Typically taking at least 15 minutes and more usually 30. Thus there is always more hours worked than 48 a week. He is paid just over the minimum wage for 48 hours. (but possibly under if the extra minutes add up to more than 90 in a week).

 

He is timetabled to have unpaid breaks of a few hours each day so that although he is on site (in the middle of nowhere) 13.5 hours a day, he is only "working" 8 hours a day.

 

All this has built up over time as people leave and there are fewer staff.

 

Last week however, one of the owners grabbed him by the arm and hurled him to the floor as he thought he had done something wrong (he had left the theatre to go to a function to mic up some of the attendees). The assult left a bruise on his arm which has been photgraphed and a Dr has seen it and documented it. The assault was done in full view of other members of staff and visitors.

 

He has not been back to work since (missing 2 shifts).

 

what is his position?

[timmeh2]

Hi

 

I might be missing something, but surely its time to get the police involved?

 

No job is worth being brutalised for.

 

All the best

Timmeh

[Brian]

I might be missing something, but surely its time to get the police involved?

My thought entirely. Plus it's not dismissal as he's till working there.

[mikesmith]

The Wikipedia definition of constructive dismissal states that it:

 

occurs when employees resign because their employer's behaviour has become so heinous or made life so difficult that they may consider themselves to have been fired. The employee must prove that the behaviour was unlawful — that the employer's actions amounted to a fundamental breach of contract, also known as a repudiatory breach of contract.

 

I'd say that physical assault would definitely count.

 

There would also be grounds for a charge of common assault there as well - a bruise is probably not serious enough to class as actual bodily harm but common assault can still end up in front of the magistrates.

 

If it were me I'd use the meeting as an opportunity to get out, get whatever end of service benefits are due to me and push for a cash compensation payment. If my employer was unwilling on any of those counts I'd be off to the police about the assault and looking for a solicitor to see about my constructive dismissal case. Much as I hate them, one of those no-win-no-fee outfits would be perfect as I'd be trying to prove a point rather than trying to win a substantial settlement.

[WiLL]

Common assault certainly on a criminal basis. Employment tribunal for the hours and pay dispute, however by not going to work he is providing them with a cause to dismiss him, he cannot press for constructive dismissal as he has not been dismissed.

[pisquee]

Yeah, police should definitely be involved, and a complaint put into the other owners/managers as surely the manager involved in this incident is guilty of gross misconduct and should be fired instantly.

[kerry davies]

I don't think W1LL is right and this case would almost certainly be constructive dismissal and for Pisquee, it was an owner not a manager.

 

"In simple terms when an employer acts in a way that permits an employee to resign without notice and the employee has more than 1 years service he/she can make a claim of Constructive Dismissal as if he/she has been unfairly dismissed.

The employer has to have fundamentally breached the employee’s Contract of Employment either in a written term (express term), or in an implied term." http://www.iambeingfired.co.uk/index.html

 

I've yet to come across any Contract of Employment allowing assault by the employer. The 'victim' of abuse may well have to formally resign but he definitely has a very good case. He could inform the police, bringing a formal complaint, and also take out a civil case against both the perpetrator for the assault and the employing company for allowing the assault.

 

If there is a local legal advice centre then they should be consulted as soon as possible and failing that try: http://www.communitylegaladvice.org.uk/gat.../employment.jsp for a directory of centres which can help with employment law and compensation claims.

 

http://www.hse.gov.uk/violence/law.htm is something I have learned from this posting, thanks again Paul, especially the bit: "The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)

Employers must notify their enforcing authority in the event of an accident at work to any employee resulting in death, major injury, or incapacity for normal work for three or more days. This includes any act of non-consensual physical violence done to a person at work."

So the employer in these cases must report the incident or face a further HSE prosecution under RIDDOR. Fascinating stuff.

[Doug Siddons]

I'm failing to see how the obvious assault has anything to do with the excessive hours issue, unless of course the tech mouthed off to the owner about them and then got grabbed

[Pattern123]

This is the sort of instance where a Union would be invaluable, both in terms of support & advice and legal assistance.

 

One thing I would say, in my experience Employment Tribunals are, by-and-large, a waste of time. They invariably find in favour of the Employer, who is usually in a position to employ a Lawyer or even Barrister to represent them.

 

I would certainly suggest involving the Police, and possibly approaching a no win-no fee personal injury Lawyer with a view to gaining some redress.

[paulears]

As people seem quite interested, here's a link to the topic

[WiLL]

I don't think W1LL is right and this case would almost certainly be constructive dismissal and for Pisquee, it was an owner not a manager...

 

...he/she can make a claim of Constructive Dismissal as if he/she has been unfairly dismissed.

 

 

But, as I said, he hasn't said he's actually been dismissed yet.

[Ynot]

I don't think W1LL is right and this case would almost certainly be constructive dismissal and for Pisquee, it was an owner not a manager...

 

...he/she can make a claim of Constructive Dismissal as if he/she has been unfairly dismissed.

But, as I said, he hasn't said he's actually been dismissed yet.

And you're probably right ...

BUT, what Paul and Kerry have said is

"In simple terms when an employer acts in a way that permits an employee to resign without notice and the employee has more than 1 years service he/she can make a claim of Constructive Dismissal as if he/she has been unfairly dismissed.

which means that he/she can at some stage resign/leave then put up a claim for constructive dismissal.

 

Don't get hung up on the actual term 'dismissal' - they don't have to wait until they're actually fired to submit the claim.

[andy jackson]

I know its too late now but JOIN A FU***NG UNION!

 

www.bectu.org.uk

[ceecrb1]

which means that he/she can at some stage resign/leave then put up a claim for constructive dismissal.

 

Don't get hung up on the actual term 'dismissal' - they don't have to wait until they're actually fired to submit the claim.

 

I´d agree, physical abuse is probably one of the few reasons that anyone can expect not to show again and with good reason... from both parties.

[collism]

You must encourage the person to act quickly - there is a three month deadline only for submitting a claim to the employment tribunal.