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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 10386
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My employer has approached me to consult about changing my

Customer Question

My employer has approached me to consult about changing my role by "re-aligninging" it to a new job description. My role is surplus to requirements but they are approaching the situation by trying to move me to a new role via what they say is a "reasonable management request" that I should not disobey... rather than putting me "at risk" of redundancy and then trying to avoid redundancy.

I have refused to consult on having my role "re-aligned" and I am now subject to disciplinary proceedings.

Am I entitled to require that my employer follows standard procedure with regards XXXXX XXXXX trying to change my role?

Have I made my case worse by refusing to engage in consultation?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

How long have you worked there for?

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

JACUSTOMER-q6d89dx6- :

Hi Ben, I have 14 years of service, but I TUPEd to the company in 2012

Ben Jones :

OK thank you, please leave it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

JACUSTOMER-q6d89dx6- :

okay, thanks Ben. I have a meeting with the employer tomorrow where they will instruct me to undertake the new roll. I was thinking of making an offer to undertake a new roll instead... will that undermine my case?

JACUSTOMER-q6d89dx6- :

I'll wait for you reply later... good luck with the Tribunal work

Ben Jones :

Many thanks for your patience. Can I check if these changes are s a result of the transfer - for example were they required because of your move to this employer following TUPE?

JACUSTOMER-q6d89dx6- :

No Ben, the changes are unrelated to TUPE

JACUSTOMER-q6d89dx6- :

the changes are a result of a Change Management Programme

JACUSTOMER-q6d89dx6- :

Idea of the Change Management Programme is to bring about efficiencies, ie introduce off-shoring etc

JACUSTOMER-q6d89dx6- :

I now have to leave for a late lunch

JACUSTOMER-q6d89dx6- :

please do try to answer my questions by mail

JACUSTOMER-q6d89dx6- :

thanks in advance

Ben Jones :

Hi, the key is whether this can be considered a redundancy situation, or ‘simply’ something that can be justified as being a change to your current terms and conditions, without triggering redundancy.

The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. Legislation defines a redundancy as being one of the following:

1. Business closure – where the whole of the employer’s business is closed

2. Workplace closure – closure or relocation of one or more sites

3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).

The third reason above creates the most challenges and the one that is most likely to apply here. Examples of when there is a reduced requirement to do work of a particular kind are:

  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).
  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
  • There is less work of a particular kind, but the same number of employees are required overall.

If you believe your situation falls within the above, then you may indeed argue it is a redundancy situation and that the employer should follow a redundancy procedure. Even if that was the case they will have a duty to offer you suitable alternative employment, the objective of which it is to keep you in a job and not make you redundant. They could offer you this new job as such an opportunity and if it is considered suitable then you will have to accept it or you would potentially be treated to have resigned and forego your entitlement to any redundancy. However, if it is not considered suitable you could reject it and still ask to be made redundant.

Finally, even if this was a redundancy situation, there is unfortunately nothing stopping the employer from trying to avoid it and doing what they are doing now. This does mean that apart from raising a grievance, the only way to challenge this is to resign and then make a claim for constructive dismissal in the employment tribunal.

JACUSTOMER-q6d89dx6- : What I need to know is what grounds I have to complain about them withholding redundancy procedires? they are stating its not a redundancy situation when it is... so i need to know if they are within their rights to take that approach of changing my role?
Ben Jones :

well as mentioned they can - even if this is the clearest case of redundancy, the employer could still stick their head in the sand, ignore the procedures they should follow and try to deal with this through other means, like just by changing your contract. Then it means you have to challenge them, which is done through a grievance first, then by resigning and claiming constructive dismissal.

JACUSTOMER-q6d89dx6- :

okay, I see Ben... my next step is a grievance in that case. How about being forced into a new role. The new role is very bad for my career, but only breaches my contract in terms of my duties. What do I need to watch out for if I refuse it?

JACUSTOMER-q6d89dx6- :

Also, finally.... how can I explain my refusal to engage in consultation for the changed role under the circumstances? I will need to explain myself at tomorrow's meeting. My feeling is that a consultation for a "re-allignment" of my role was not appropriate while I was agrieved that they were not following redundancy procedure.

Ben Jones :

Sorry to keep you waiting. If this is being treated as a change to your existing contract then in general if the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., then as mentioned you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

So really the options and the potential outcome is more or less the same as discussed earlier.

JACUSTOMER-q6d89dx6- :

Ben, I have offered my employer a compromise where I would volunteer to take another role without grievance. If they decline my offer, will it undermine my case for rejecting the 'alignment' into the originally proposed role?

JACUSTOMER-q6d89dx6- :

Ben are you able to provide me with your thoughts on the above? I will wrap up shortly after.

Ben Jones :

Hi, sorry second day at the tribunal, I am around now. The role you wish to take up voluntarily - I presume that is different than the one they are trying to slot you in to?

JACUSTOMER-q6d89dx6- :

yes, that role has fewer deskilling implications

Ben Jones :

this should not affect your position - you can also highlight that it is more of a suitable alternative than what you have been offered at present so the employer should really be looking at that first before offering you what is currently on the table

JACUSTOMER-q6d89dx6- :

okay, thanks Ben.

Ben Jones :

You are welcome, is there anything else I can help with in relation to this or has this answered your question?

JACUSTOMER-q6d89dx6- :

Assuming that my offer to undertake a more appropriate role is declined on Monday and I am told to commence with the problematic role; What exactly should I do next. I understood that I should state that I am working under protest from you response yesterday. Is there more I need to know about doing that? I am planning to follow policy and raise a grievence about HR's handling of this situation to the Ethics council (normally grievances not about HR are raised to HR) - do you see any problems with that?

Ben Jones :

you specify you are working under protest, then in the meantime take steps to resolve this, such as the grievance.

JACUSTOMER-q6d89dx6- :

okay

Ben Jones :

Has this clarified your position?

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

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