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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48761
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am employed as a General Manager in a multi national company

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I am employed as a General Manager in a multi national company (in the UK) I report directly to the MD. I have been informed that he wishes to reorganise his function. My present role is effectively disappearing in the reorganisation he has suggested a new role that I am not qualified for, my area of expertise is practical in a very focused industry and does not transfer easily. I am also being told that I would need to report to a colleague identified within the business management team as one of my peers I see this effectively as a demotion. I believe I am being unfairly victimised. Would these circumstances fall under "Constructive Dismissal"?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

32 years

Expert:  Ben Jones replied 2 years ago.
Have they mentioned redundancy as an option?
Customer: replied 2 years ago.

I've mentioned it! the response was cool.

Expert:  Ben Jones replied 2 years ago.
ok thanks let me get my response ready please and I will get back to you early this evening
Customer: replied 2 years ago.

I am logging off from my works account you will need to direct your response to *****@******.***.

Expert:  Ben Jones replied 2 years ago.
Ok you should receive an email when I have responded
Customer: replied 2 years ago.

I assume you will respond to *****@******.***?

Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. In the first instance this appears to amount to a redundancy situation. The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:
1. Business closure – where the whole of the employer’s business is closed
2. Workplace closure – closure or relocation of one or more sites
3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).
The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:
• The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).
• There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
• There is less work of a particular kind, but the same number of employees are required overall.
So as long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied and the focus then shifts on the remainder of the redundancy procedure. This would include what consultation took place, whether any suitable alternative employment was offered to those at risk and the general fairness of the redundancy procedure applied by the employer.
In your case the employer is refusing to accept that there is a redundancy situation and even if that was not the case, the offer they have made you could be deemed unsuitable and you could reject it, asking for redundancy instead.
As you cannot force the employer to go down the redundancy route, if that does not happen and you feel your position has become untenable due to the changes you may indeed consider resigning and claiming 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.
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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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