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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48195
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a long term employee and following a 3 year secondment,

Customer Question

I am a long term employee and following a 3 year secondment, my current role within the organisation no longer appears to exist due to organisational change within our team. I have been offered a new job within the same team but have been told that this will be subject to a 3 months probationary period. Does the probationary period still apply as a long term employee and if I was unable to fulfil the new role after 3 months should I be offered an alternative post
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. Was your old post ever guaranteed on your return?
Customer:

Hi Ben

Customer:

Hi Ben the secondment agreement says that when the secondment ends I will return to my original substantive post on my previous hours unless otherwise agreed. In the meantime if my substantive post be subject to Organisational Change I would be consulted with in accordance with the Organisational Change Policy.

Ben Jones :

The probationary period in this new job would just be an internal matter, which would not affect your legal rights. As far as your employment security is concerned you will have continuous employment with the employer and would be protected against unfair dismissal. So they cannot simply dismiss you just because they feel that you have not passed the probationary period.


 


According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.


 


So even if they believe you failed the probationary period, if they wanted to dismiss you they would need to show that the reasons for the dismissal fell within one of the above options and that they also followed a fair procedure. The procedure would involve them looking at alternative for dismissal first before considering termination so even if you were considered unsuitable for this rile, they need to try and offer you something else before it gets to dismissal.


 


If they jump straight to dismissal, without even considering what else you could so and try to avoid it then you could be looking at an unfair dismissal, which you could challenge further if necessary.

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Ben


I was initially told that my job description was being rewritten as it was too clinical and it was being written for the requirements for a new strategy. when I was informed of the result of the job matching for the new job description, I was told that this was a new post. The job specification does not appear to have changed much although the job description has. Should this be a new post or a rewrite of my job description and if the later applies should I have the probationary period. I have also been asked to change my location for my base and be more flexible in my part time hours as I have previously worked set days for 19 years


 

Expert:  Ben Jones replied 3 years ago.
Hi, as mentioned a probationary period des not really have any legal standing in this situation because the employer cannot just say you have failed the probation and as such should be dismissed. What would overrule this is your length of service with the company and the fact you have continuous service with them that protects you against unfair dismissal. So it would not prevent the employer from jut using the probation as an internal performance –measuring tool just to keep an eye on you to see how you are getting on in the new post, but it does not allow them to sack you if they believe you have failed it.