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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48156
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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my company have told me if i dont pass my nvqs within my role

Resolved Question:

my company have told me if i dont pass my nvqs within my role i will be downgraded within
my job role
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.Can you please tell me how long have you been with your employer

Ben Jones :

Also does your contract say that the employer can do this?

Customer:

i have been with my company 8 years and took up my new shift managers role 2 years ago.we have signed new contracts

Customer:

the contract states are new shift hours patterns and my job description states nvq level 357 only desirable

Ben Jones :

If your employer is trying to downgrade you then assuming there is nothing in your contract that states they can do this, they will be acting in breach of contract. This is because they will be changing your contractual terms and conditions and to do so they would need your consent or some other specific and clear right in the contract allowing them to do so.


 


From what you have told me there does not appear to be anything that allows them to downgrade you. The contract says that NVQ is desirable but does not make it a strict requirement and specifically it does not state that they can downgrade you, reduce your pay or status, etc. Therefore, of they go on and do so, regardless of whether you have failed the NVQ, they are most likely going to be acting in breach of contract and you can take the matter further if necessary.


 


This could eventually amount to constructive dismissal, which 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.


 


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 the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.


 


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. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

Customer:

Thanks for that i think they are playing mind games and tell me that i am the best motivated shift manager their

Ben Jones :

you are welcome

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