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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46188
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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please could I request some advice. Following treatment for

Resolved Question:

please could I request some advice. Following treatment for Cancer I was off work for 5 months. When I returned my CEO informed me that my role no longer existed and offered me another position which I accepted rather than take redundancy which was my other option. Now 15 months later the post has reappeared and has been given to another staff member without advertisement or discussion. My question is can my employer legally reistate a post they effectively made redundant and is there a time scale for this to be legal?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Since May 2008

Ben Jones :

ok let me get my response ready please

Ben Jones :

It is not unlawful to make a job redundant, follow the correct process and then reinstate the job at a later time. As you can imagine, a redundancy situation can be created due to the circumstances experienced at the time, such as need for particular work to be done, financial pressure and so on. That does not mean that the circumstances cannot change in the future and a need for the same job to arise at a later stage. In fact this has happened quite often, especially in the current climate – companies have had to make scores of people redundant to save money and reorganise, then a couple of years later the business picks up and they need people to do these jobs again, so they recruit – all of this is legal.


 


In terms of your rights on being offered this job, employers have the right to choose who they employ and can make such decisions based on a wide range of factors. There could be a number of reasons why one candidate is chosen in preference to others or why someone is not given a job, even if they are generally considered to be the best candidate. It is generally lawful for the employer to use whatever factors they feel are relevant and appropriate in the circumstances to come to that decision.


 


The only requirement in law is that the employer’s decision is not based on discriminatory grounds. That means that it should not base its decision on factors relating to gender, race, religion, age, disability, sexual orientation, etc. If its decision is based on any of these, there will be a potential case of discrimination and the affected person can potentially take this further. However, in the absence of any discriminatory reasons, the employer will rarely be acting unlawfully and will have the general power to be selective over whom it employs, even if it this generally appears to be unfair.


 


In your case, cancer is automatically a disability so if the reason you were not offered the position because of your condition, it would be a discriminatory act and it is something that you can pursue further if necessary. However if this had nothing to do with your condition, it would not be unlawful.

Customer:

Thanks, XXXXX XXXXX the post being announced , My employer decided to pay out on a ghost share option scheme. He has 50% and then asked me to agree that the other 50% is paid when I leave the company . He then announced this appointment

Ben Jones :

ok what do you think is wrong about that?

Customer:

it feels like I am being encouraged to leave

Ben Jones :

some of this could be circumstantial evidence , but the issue really is why were you not considered for the job - as mentioned there is no legal obligation to advertise it and offer it to everyone suitable so you have to really try and find some evidence that it had something to do with your condition, For example you can ask for formal reasons for their preference for someone else

Customer:

Many Thanks for the objective opinion

Ben Jones :

you are welcome. Also remember that you have the grievance option open to you at any time - it is as formal complaint to the employer about anything you are unhappy with and would prompt them to formally investigate and deal with the issues you have raised

Customer:

thanks

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46188
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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