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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been with my current employer for over 15 years, MBNA

Resolved Question:

I have been with my current employer for over 15 years, MBNA in chester. In 2011 I was bullied by my manager and had to have a lot of medical help. It was decided that because of my mental health state, I would not continue in the role I had as complaints case manager, but would take on an easier role. This started approximately June 2012. It was agreed that this would be a stop-gap until something else came along. In April 2013 I was invited by letter to move to a different team to continue doing this role, as this was where the process was managed. This was a letter offering me a secondment and has been reviewed every 3 - 4 months with my receiving letters continuing the secondment. I have tried to bring my secondment to an end as it is constantly changing and a number of us are failing our monthly targets. I had a meeting in HR yesterday where they told me this is my permanent role and that I cannot bring it to an end. I have had no discussions or agreed to being made permanent in this role and am pursuing this through the Grievance Process. Could you advise of my rights please? Many thanks. *****
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are you hoping to achieve, simply return to your old role?

Customer:

Hi Ben, no, the letter writing role no longer exists and it is my hope to get redundancy. A lot of people have been made redundant in the area that I work in and this was my expressed wish to HR when I first went to see them 3 weeks ago. I believe that as my role no longer exists and that there is no role available to me in the area that I was seconded from, redundancy should be the correct step. It was confirmed to me yesterday that my old role no longer exists and that the team I belonged to does not need any resource.

Ben Jones :

Is there nothing else similar or suitable you can do?

Customer:

They are saying no, and that any other role that I would find suitable I would have to apply for through the usual application process. I feel strongly that I have been misled and duped. I also believe that my secondment started in April 2013 not June 2012 as they are saying.

Customer:

I forgot to add that my GP has supported me for the last 18 months or so, and recently signed me off with stress related work issues" for two weeks. She put on my note that "not fit for work in current role". I offered to come into work and do another role but they wouldn't agree to it so I have had to stay off for the time being until the investigation was concluded.

Ben Jones :

You may indeed argue that you should be placed at risk of redundancy and if no suitable alternative employment is found to be made redundant. However, you cannot force the employer to do so and if you are found yourself being forced to stay in the current job and you do not believe it to be a suitable alternative, then you can consider the constructive dismissal route.


 


This 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.


 


A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).


 


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.


 


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:

Could you tell me more about the secondment element and what rights I have in relation to a secondment being made permanent without an employees knowledge or consent. Also, I emailed my HR representative yesterday to request to view my personnel file as I do not have all the letters in my possession. She has confirmed that she will do this and send me relevant paperwork in the post next week. I need all this information before I can proceed through the grievance route - the meeting yesterday followed an "informal" investigation at my request 3 weeks ago.

Ben Jones :

if it was always considered a secondment and no indication of it being a permanent move then you cannot be forced to move there without your consent as it would amount to a change of contract. If they force you to move then the constructive dismissal route is again your option.

Customer:

Can employees remain with their employer if they opt to go down the constructive dismissal route or do you have to leave the employer first?

Ben Jones :

you mst resign, you cannot just make a claim in the tribunal otherwise

Ben Jones :

or be dismissed first

Ben Jones :

Whilst employed you can only follow the grievance route

Customer:

Thank you. In your opinion Ben from what you have read about my situation, do you think I have a case to proceed through the grievance route? It is a very stressful time as I'm sure you know but something has to be done.

Ben Jones :

yes certainly and do not worry too much about whether to raise a grievance or not - it is your right to do so if you are unhappy about anything in the workplace

Customer:

Thank you. that is what I was hoping you would say. Am I able to come back to you for your guidance over the coming few weeks please?

Ben Jones :

yes certainly, just ensure you start your query with 'for Ben Jones'

Customer:

I will. Thank you very much, you have taken a lot off my mind tonight. I hope I did not disturb you so late - especially with the World Cup game of Spain and Netherlands...it was superb!

Ben Jones :

not at all, not difficult to have it in the background, great game indeed...let's see what tomorrow night's brings

Customer:

Oh yes, very important, any predictions on how England will perform against Italy?

Ben Jones :

Ha, history will show my predictions are not very accurate...

Customer:

OK. thank you once again Ben and I will "speak" to you again in the near future. Goodnight.

Ben Jones :

You are welcome and all the best for now

Customer:

Hi Ben, you are still in chat so I can't select the rating for your credit. Sue.

Ben Jones :

Apologies for that, there is a bug in the system which we sometimes get and it prevents you from posting your rating. Instead, you can just type your selection on here (e.g. OK, Good, Excellent) then we will process it manually later. Thank you

Customer:

OK. My rating for your assistance is "Excellent Service". Thank you.

Ben Jones :

Many thanks

Customer:

FOR BEN JONES:

Customer:

FOR BEN JONES: Hi Ben. Sorry to come back to you so soon about my employment situation, but I have had chance to digest the contents of the letter I was given from HR when I had my meeting on Thursday. I wanted to be clear on a point that I did not ask you about. As stated previously, in June 2012, I was placed with a new manager due to months of stress at work resulting in poor performance. My role as complaints case manager (letter writing) was taken off me and I was given a less stressful role of logging PPI complaints for loan accounts as a secondment. I was always led to believe that I would return to my line of business (loans) when their was a role for me. Although this line of business still exists, a number of people have left or have been redeployed due to the winding down of the Loans business (MBNA ceased their loans business in 2008). I did not move to team I am currently with until April 2013 where I was seconded to log loans AND credit card ppi complaints. I have signed secondment letters every 3 months. In my letter from HR, they state that the "ROLE" I have been doing has been the same for 2 years this month, therefore this is my permanent role. Is there anything I should be worried about here Ben regarding a 2 year period? No discussions or letter to change my contract terms have ever been received. Many thanks. Sue.

Ben Jones :

Hi, there is certainly nothing in law which states that once you have been in a job for 2 years it becomes your permanent position. This could eventually be the case based on ‘custom and practice’, which is something that happens over time if it has been applied consistently and it was the parties’ intentions for it to happen, but there is no specified time period after which it would apply. So in some circumstances you could remain in a position for more than 2 years and it still won’t be your permanent position if it was clear that this was never the intention in the circumstances. So there is no easy way to determine whether this was the case or not and usually only a tribunal can make such a decision. What you should know is that there is definitely no specified period which the employer can rely on to say that after that your position has become permanent.

Customer:

Thank you Ben. I am going in to HR tomorrow for a meeting to begin the grievance process at 2.30pm. I will be using your guidance to assist me. I am in the throes of preparing my written submission and feel a lot more comfortable going into the meeting having had your assistance. Kind regards. Thank you. Sue.

Ben Jones :

Glad to hear it and all the best in pursuing this

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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