Employment Lawyers Can Answer Your Employment Law Questions
How long have you worked there for?
Hello, my name is Ben and it is my pleasure to assist you with your question today.
Hi Ben, I have 14 years of service, but I TUPEd to the company in 2012
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
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?
I'll wait for you reply later... good luck with the Tribunal work
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?
No Ben, the changes are unrelated to TUPE
the changes are a result of a Change Management Programme
Idea of the Change Management Programme is to bring about efficiencies, ie introduce off-shoring etc
I now have to leave for a late lunch
please do try to answer my questions by mail
thanks in advance
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:
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.
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.
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?
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.
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.
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?
Ben are you able to provide me with your thoughts on the above? I will wrap up shortly after.
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?
yes, that role has fewer deskilling implications
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
okay, thanks Ben.
You are welcome, is there anything else I can help with in relation to this or has this answered your question?
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?
you specify you are working under protest, then in the meantime take steps to resolve this, such as the grievance.
Has this clarified your position?
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