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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47355
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was recruited as an FD designate 7 months ago with the promise

Resolved Question:

I was recruited as an FD designate 7 months ago with the promise of the finance director role by Christmas, however within 4 days a new MD was appointed. I did not receive my FD status in the specified time and now the new MD is recruiting his own FD to sit above me. I am obviously far from happy and wondered where I stand with this. They have still not supplied me with a contract of employment either
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. How would not getting that position affect you, would it be financially?
Customer:

I moved to the role to further my career, to become fd,. Whilst it wouldn't affect me financially immediately, it may do in the future. My main concern is where I will sit in the business, from being no 1 finance role to not being. I am currently reviewing all options, and in particular whether to look for something new, so not to damage my cv

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal or constructive dismissal. This means that your employer can dismiss you or force you to resign for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.).

So let’s say you refuse to accept their decision and push for the originally advertised role – the employer could decide to dismiss you as a result of this. Similarly, if you are forced to resign because of this, you cannot take it further by claiming constructive dismissal.

You would still be entitled to receive any notice period you are due, although in the absence of a contract that would just be 1 week.

So as you can see, a refusal to accept the current situation could result in the employer simply giving you notice of termination and ending your employment, without having to provide a fair reason for doing so. There is of course no guarantee that will happen but it is something you need to bear in mind when you consider your position. You could try negotiating with them but your bargaining position would be rather weak I’m afraid.

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

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Thanks for the answer, but how does a lack of contract put them.in the better position. I thought legally everyone must be given a written contract of employment?

Ben Jones :

you are entitled to receive a written statement of employment particulars within 2 months of starting a job. But even if you had it would not change our rights in terms of having no protection against unfair dismissal. So regardless of the lack of contract they could still easily dismiss you if you refuse to accept the situation

Ben Jones :

or you could be forced to resign and again you would not be able to challenge this - these rights are not affected even if you had a contract, so the lack of contract does not change anything, it does not really place them in a better position, I don't recall saying that, your rights depend on your length of service, not the contract that should be in place

Customer:

A lack of contract would impact the notice period, a senior member of the management team should be on 3 months notice but I am at risk of only receiving 1 week.

Ben Jones :

but there is no guarantee that you would have been given longer than a week's notice in the contract - just because someone else is on a longer period does not mean you would have been as well. Also the contract may not have mentioned anything about a notice period, that is still a possibility, in which case you would have been on the week's statutory notice period. So it is a rather big 'what if' which in law would not be easy to pursue unfortunately

Ben Jones :

you can of course negotiate with them, make it clear that you would expect a 3 month notice period in the circumstances and even threaten to take the matter further, in the hope that they agree the longer notice period in the event you are let go

Customer:

I will try the negotiation route tomorrow.

Customer:

With regard the contracts, would a company not be better to not give these out until 2 years served, as it allows them to dictate terms at any point? I know its not legal but there seems to be nothing stopping the company.

Ben Jones :

they must issue basic terms within the first 2 months, but the issue is that even if there is a very detailed contract in place (let's say except a notice period which they can't really change once it is in place), they could easily amend these terms at any point in the first 2 years by simply terminating the existing contract and re-issuing a new one. So whether there is a contract in place or not, the employer is able to amend most of the terms quite easily in the first 2 years

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

Its not the answer I was after but thanks, ***** ***** you covered everything

Ben Jones :

you are welcome, all the best

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