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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can my employer force a secondment upon me and can they dismiss

Resolved Question:

Can my employer force a secondment upon me and can they dismiss me should i refuse?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Firstly can you tell me how long you have been with your employer and do you fell uncomfortable with this secondment

Customer:

Hello

Customer:

I have been with my employer for 16 years

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

Thank you

Ben Jones :

Many thanks for your patience. Unless your contract provided that the employer could force you to go on secondment, such a move can only really happen with your consent. Removing you from your existing position and placing you on secondment will amount to a change to your contractual terms and conditions and the employer would need to seek your consent or rely on a specific contractual provision allowing them to do so. In the absence of wither of these, they cannot really dismiss you because such a dismissal will likely be unfair and you have protection against unfair dismissal.

As far as the law is concerned, there are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:



  • Receiving the employee’s express consent to the changes.

  • Forcefully introducing the changes (called 'unilateral change of contract').

  • Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.


If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

The post i had has gone under a new employer and I should have transfered under TUPE. The new employer challenged this and wont disclose why .

Customer:

TThe secondment is also to this new employer . Tj

Customer:

This all happened on the28th Jan 14 while i was on Maternity Leave and I was never kept informed. I still wasnt kept informed when i gave my eight weeks notice to return either. My union managed to confirm i was in a holding position but as i have so far refused to sign the secondment agreement they have said i have taken unapproved leave . Should i not have produced a fit note from my gp they were going to take disiplinery action. I have however sen my gp and done exactly that

Customer:

The training for this secondment is outside of my contractual hours and have childcare issues. Im not sure which way to take this further. Should i resign or allow them to take me through the disiplinery route , would i compensated or left with no job and vastly out of pocket

Ben Jones :

Have you raised a grievance over this?

Customer:

No not yet

Ben Jones :

This should be the first step in pursuing this - it provides the employer with an opportunity to resolve this internally and without the need for any legal involvement, you can also appeal the outcome if you disagree with it. After that it is really a matter of seeing where the employer takes this - would then dismiss you or make your life there hard forcing you to resign. That is when you consider either a claim for unfair dismissal or constructive dismissal respectively. If you believe that any of this also had a link to your maternity leave it can also amount to potential discrimination, a claim that can be submitted alongside either of the above

Customer:

Thank you for youf advice

Customer:

Trying to rate abswer

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:

Excellent

Ben Jones :

many thanks, noted

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