How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask taratill Your Own Question
taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
32019188
Type Your Employment Law Question Here...
taratill is online now

question about potential for a constructive dismissal/change

Resolved Question:

question about potential for a constructive dismissal/change of employment issue.
i work as a sales manager for a small company for 15 years, and held the same senior management position for the last 10 years, reporting to the CEO.
I managed 3 seperate teams a total of 22 staff- 2 internal admin, and an external sales team.
2.5 years ago we got a new CEO who started to make changes
the first changes about 2 years ago was to remove 1 of the two internal teams from my responsibility and hand them to another dept,which i protested but accepted.
About 4 months ago he removed the last internal team from me once again passed to another dept, which i again protested but had no option.
at no point have i ever been under poor performance, disciplinary etc etc. in fact the opposite having had positive appraisals each year.
these changes are down to system changes,streamlining of roles etc. giving me less managerial responsibility but more direct sales. This means that my management requirement elements have declined, offering little requirement to be physically in the office and instead am expected to be out with the external sales team
my contract or role did not change during this period. i have achieved all required targets and have been given all bonuses throughout
5 weeks ago i was informed he was restructoring the sales staff structure in the company and gave a breakdown of the roles and asked me to prepare a simple document explaining which position i wanted.
It wasnt to be a formal application process, simply an overview of which i felt was the ideal role for me and why.
I had full expectation of where HE saw me fitting, a role i catagorically did not desire and we discussed this at that very point where i stated if this was his intention that i did not want the role i expected he had in mind
There were to be three senior roles at my level. I did my doc & 2 weeks later he announced he was going to give me.. yes.. the role i didnt ask for and didnt want.
I told him i didnt want this role, it didnt motivate me, and he would have an unmotivated, unhappy manager. He gave several explanations for his decision and also informed me i would be getting a new boss to report to immediatly so i would not be reporting directly, and this new person would manage my transfer into the new role.
i left that meeting unsure of which action to take. A few days later, i went back to him and catagorically emphasised i do not want the role, and expressed my lack of interest in doing so. I specifically asked to be allowed to continue in my current role, which the reply was that it does not exist anymore, but he didnt want to have to go through a formal redundancy at "our level" as it wasnt required. I said it might be in our mutual interests to discuss taking the opportunity about a managed exit rather than forcing me into something i dont want, but he rejected that.. saying instead he felt if i gave the job a chance he would be proved right in the long term.
To explain why i dont want thenew role. Currently I am responsible for sales distribution activities in the UK. I travel within the UK only an average 40k miles a year and a few odd european trips a year.
The new role is responsibility for all sales distribution activities in all Europe, involving european travel on average 3-4 days a week.
This is a considerable time away from home and is the primary reason why i dont want it.
last week my new boss (new group sales director) announced my new position and title, and as a surpise has included the title of Director which i wasnt expecting. I think this is to appease me as the CEO knows i have coveted the sales director position for many years and also to look good for our distributors who will want to deal with somebody senior. I asked if this was a genuine directorship with a board position etc, and was told its in title only with no executive powers or board position.
I have also confirmed to my new boss that i still do not want this job, but have no alternative but to begin in the role.
I feel with the constructive removal of mangerial responsibilities in the office over the last 2 years they can state that prior role is not required, but i feel this was purposfully done. I now have no option but to accept this new role, with no alternative given. There has been no discussion as salary, or contract for the new role, yet i am expected to have already started and be travelling around europe already.
having declared several times i dont want the job, but given no options it feels like i am being backed into being the one that makes a resignation decision.. or just get on with it!
i am not sure which direction to go.. i have been with the company so long, enjoyed my work etc.. and on the surface looks like i have been promoted but isnt.
what advice do you suggest and what are my rights on this situation? i am aware the longer it goes the more it can be argued i have accepted the role.
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today.

taratill :

What has happened to the original role you were doing?

Customer:

the sales part that remains after two of its consituint parts were removed over the last 2 years are still included within my new role, so i am still doing all of it.

taratill :

Ok so the original role (in it's entirety) no longer exists as parts have been removed and you are being offered a new role (with parts of your old job in it)?

Customer:

it depends on how to interpret the "entirety" part. For 8 years i did all activities in the UK and managed its teams. then for the last 2 years he has slowly removed elements of that , leaving one core responsibility. That remaining core responsibilty is now part of the new position, so it could be argued that my role for the immediate period prior to the restructuring is still part of my new position, but that was a very trimmed down role from the prior 8-10 years.

taratill :

Ok the employer is likely to argue that but in reality this seems to be a redundancy situation. The law says this arises where 'the need for a person to carry out a role ceases or diminishes' , this can occur through a restructure. Where a redundancy situation arises a person should be paid a redundancy payment (amongst other things such as being consulted with!) and should be offered alternative work. The only way that the employer can avoid making the redundancy payment is by making an offer of 'suitable alternative employment' at the same salary and with similar responsibilities. A difference of geographic area such as you describe would not be considered to be a suitable alternative. It is my view that your employer is attempting to 'fudge' the issue to avoid it's responsibility under redudnancy laws.

Customer:

thats my view.. especially as i expressely asked him to retain my existing role and he said it didnt exist but he didnt want to have to bother with all the redundancy process for a position at my level. i am concerned that as time goes on it can increasingly be argued that i have acknowledged and accepted the role, whereas i have not been given a choice.. so i have no option BUT to accept.. or resign. i cant easily afford to resign, but i expect that at some point in the not too distant future i will no longer be able to accept the travel and will resign, but as time has passed will not get any benefits.

Customer:

i need advise on what direction to go and what process to take

taratill :

You should raise a grievance that it amounts to a redudnancy situation and that you are not prepared to accept this role which does not amount to a suitable alternative and also say in the grievance that they have failed to consult with you. You should state that you feel that all of this goes to the root of your contract and will give rise to you having the right to claim constructive dismissal. You should ask them to consider a settlement agreement as an alternative to this. Give a time frame on the letter of 7 days. If you want you could see a local solicitor who can write a letter on your behalf. If you have household insurance it may contain legal expenses cover which is worth looking at.

Customer:

ok, is there a defined time period that this should all happen in? there is a twist that i think he may be using as part of his timing here.

taratill :

You have 6 months from the date of redundancy to claim redundancy pay and 3 months from the act to claim constructive dismissal.

Customer:

as a salesman i am paid on sales targets, and our year end is due in the next few weeks, and i am due my final year end sales bonus which will depend on the last months figures. i am curently on target, so would expect to get my bonus.. which i need to bring my salary inline. could i start this process on Jan 2nd and be within a reasonable timeframe from the new position announcement, yet still be able to argue that i should get my 2014 bonus.

Customer:

i just cant afford for him to get awkward and find ways to punsh me my means of my bonus,

Customer:

if this was ongoing during decvember when the year end happens then there is that risk

taratill :

When is the new position being announced. If you work in the new position more than a month then you will not be entitled to redundancy as you will have accepted the new position.

Customer:

bugger..it was announced last thursday offcially

taratill :

In the situation you are in I really think you should see a solicitor and get them to write a letter. Compensation should include the bonus you are due.

Customer:

a simple email out to the company.. but i have not signed or had anything given to me that states this. i just have the same email everytone else has

taratill :

ok did you see the point I just made about seeing a solicitor. I would suggest you do as timing is key here and compensation should include any bonus you are due.

Customer:

ok.

Customer:

thanks.. i have no idea where to get a solicitor.. do you have any suggestions

taratill :

Any high street firm with an employment department. Or you can use the find a solicitor search on the law society website. http://solicitors.lawsociety.org.uk/

Customer:

ok... thanks

taratill :

No problem, if you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

taratill :

Forgot to say many lawyers do an initial consultation for free so you should phone round to find one who will do that.

Customer:

thanks

taratill and other Employment Law Specialists are ready to help you