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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I received an at risk letter in my job role, jobs within the

Resolved Question:

I received an at risk letter in my job role, jobs within the company were advertised, I was unsuccessful in the job I went for and then I asked for my redundancy, I was told we want to keep your expertise in the company and alternative employment has been offered! However this role is in effect demotion from my former role, I lose my years of service and holidays with years of service and must sign a new contact, if I take the role offered.
I do not think this is a suitable alternative please help. I think I am being forced to just leave and they are doing everything to avoid paying me redundancy! this new contract probationary period etc. reducing holidays etc working with people whom I was previously in charge of is not suitable and I am back to were I started 9 years ago.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How do you know you are losing your continuous service - have they confirmed that?

Customer:

Yes the new contract I received to day states it begins today

Ben Jones :

the contract may state that but under law you will not lose your continuous service - the law will allow you to preserve your service with the company unless there was a full week break between the old job and the new one, where they terminate our old job you have the break and then are formally re-employed in the new post. So regardless of what he contract says, the continuous service is likely to continue

Customer:

I have been sent a new contract with a new quite similar role, the new contract started yesterday I am to initial every page agreeing to content, the new job role is a new contract and it does take away my years of service! They are saying I have been offered a new role (alternative employment) and therefore redundancy will not be paid! I have been demoted, I am on the same wages but the new role is something I did years ago and really do not want to step back to, what am I to do it is like starting over instead of climbing the ladder ,I feel I am being bullied into taking the role because I love my job and want to work.

Ben Jones :

it does not matter what the contract says, the years of service are nit taken away - the law overrules the contract

Customer:

Thank you Ben but I am still confused! must I take this new role as the status is not the same, I am not getting like for like this job does not carry my same title it is demotion, I want redundancy rather than take this role and new contract, what can I do

Ben Jones :

No you do not have t take on this job if you do not believe it is suitable. There are various factors that would determine the suitability of job and status and apparent demotion is one that could make it unsuitable. The issue is that you cannot force the employer t make you redundant, even if the job is not suitable. If they fail to go down the redundancy route, even if they should, it would then be for you to resign and make a claim for constructive dismissal to pursue your rights and the pay you should have been due

Customer:

Thanks Ben, I would have liked to have explored with you more the constructive dismissal route and my rights.

Ben Jones :

Well constructive dismissal occurs when the following two elements are present:



  • Serious breach of contract by the employer; and

  • An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.


 


So for example not granting you redundancy when they should could amount to that.


 


The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.


 


Following the resignation, the option of pursuing a claim for constructive dismissal exists. An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Customer:

I will take your advice Ben and ask for without prejudice basis settlement. I must say I am still not happy with the way I am being treated but, if law overrules contract I will go down this route.

Customer:

Thank you

Ben Jones :

you are most welcome, hope this has helped explain your rights

Customer:

Yes it is a complicated situation,my employer is doing everything to avoid paying redundancy, some employees have just left without redundancy payments because it was refused, and the alternative employment offered was not suitable, they did not have faith in fighting for their rights, I need help in that I do not want to accept anything they offer, and they make it out that I have refused alternative employment, should I refuse what they have offered on the basis of status, sorry I know this is painful for you

Ben Jones :

Not at all....yes you would be rejecting it for being unsuitable due to a drop in status. This is one of the accepted factors that can make an offer unsuitable

Customer:

Thank you Ben good night I will speak to you again I am sure.x

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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