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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46809
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am 44. The company that I have worked

Resolved Question:

Hello.
I am 44. The company that I have worked for for 11.5 years has relocated. Previously the office was 14 miles from my home, the new office is 34 miles from home, depending on the route.
The new office is hard to get to due to the surrounding infrastructure, and involves me taking the M4 and M25. The move had doubled the amount of time I spend in the car each day to three hours, and this would probably be more if I wasn't working 8-4.30.
I have requested that the company pay me statutory redundancy as a result of the additional transport times (approximately an additional 300 hours a year), the increased fuel costs (approximately £3,200 a year when considering gross pay) and increased costs due to wear and tear.
The company has refused my request after I raised a formal grievance. I have become aware that the company has paid redundancy for two part time staff whom my company outsourced to an agency.
I appreciate any outcome is decided on a case by case basis, but the company has paid £5,000 redundancy to two outsourced staff, both of whom lived in the same town as the old office. I have a copy of this invoice that unequivocally states that my company made a payment to the agency to cover the redundancy costs of the two staff.
Do you think I have a case that I could win if I took this to an industrial tribunal?
Kind regards.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. I presume these two members of staff have not relocated and have left the company?
Customer: replied 1 year ago.

Hello Ben.

Thank you for coming back to me so quickly.

You are correct, the two part-time receptionists, originally employed by LG and then outsourced to a third party, decided not to relocate and took the redundancy settlement offered to them.

Do let me know if you have any further questions.

Kind regards, Colin

Expert:  Ben Jones replied 1 year ago.
Hello Colin, when did the move take place?
Customer: replied 1 year ago.

Hello Ben

May 26th 2015 was the first day of working at the new location. I have not signed any agreement regarding the new terms of working. I am currently only planning to work the four week trial period. ACAS are in Early Conciliation with our HR department.

I am aware that if I work one day longer than the trial period, by default I agree to the new terms of working and would lose my right to proceed down the legal avenue.

If I think I have a case, I will only work the trial period, if I do not have a strong case, then I may decide to remain at the new location until I find alternative employment closer to home.

Kind regards, Colin

Expert:  Ben Jones replied 1 year ago.
If there is a redundancy situation, an employer has a duty to offer those employees at risk any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in a job rather than make them redundant. Therefore, if an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.
If the offer is considered unsuitable and the employee refuses it, they will be made redundant and still receive redundancy pay. However, if the offer was suitable and the employee unreasonably refuses it, they would effectively be resigning and will lose their entitlement to redundancy pay.
So the main issue is what makes an offer suitable and when can an employee reasonably refuse it. The most common factors that would make an offer unsuitable are:
• Job content/status – drop in status, substantial changes in duties, etc.
• Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, sick pay, holidays)
• Working hours – change in shift pattern, removal of overtime, extension/reduction of working hours
• Change of workplace – new location making it unreasonable to travel to the new place of work
• Job prospects – going from permanent to temporary work, becoming self-employed or being employed on a fixed-term contract.
Where an offer of alternative employment has been made and its terms and conditions are different to the employee's current terms, they have the right to a 4-week trial period. If during the trial period they decide that the job is not suitable they should tell their employer straight away. This will not affect their employment rights, including the right to receive statutory redundancy pay.
So it is important to consider whether any offer that has been made is suitable or if there are reasonable grounds to treat it as unsuitable and safely reject it, opting for redundancy instead.
Your case concerns relocation so the main factors would be to do with the distance, time and costs associated with commuting to the new place of work. The suitability of such employment can be difficult to gauge, particularly as it depends on the employee’s personal circumstances. Here are some case law examples:
• Tribunals should take into account the fact that the employee had always lived and worked in her local area, walked to work, went home at lunch time when she regularly shopped in the local shops and that she went swimming either during her lunch break or on her way home. (Hudson v ***** *****on Ltd).
• A printer reasonably refused an offer of work in Central London which would have involved an hour's tube travel (rather than the 15 minutes by car he was used to). The fact that an hour's travel each way was usual for London commuters was held to be irrelevant; it was the effect on the individual employee's life that was relevant to whether it was reasonable for him to refuse the offer (McGurrell v Garrett and Campbell Ltd).
• An employee who suffered from claustrophobia and had a small child, was held to have reasonably refused a change of workplace in central London that turned a few minutes' walk into a half-hour bus journey (Cahill v Keith Prowse and Company Ltd).
• A widowered employee with two children aged 12 and 16 reasonably refused alternative employment requiring him to drive an additional four miles. The traffic conditions meant this would add significantly to his travel time which, coupled with his childcare responsibilities, made his refusal reasonable (Charlwood v KPK (Sheet Metal) Ltd).
So it is your own personal circumstances that can dictate the suitability of relocating of your workplace. There will always be a risk with taking this to a tribunal because one judge on one day may not necessarily have the same view as another judge on a different day. So bear all of the above in mind before making a formal decision.
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
Customer: replied 1 year ago.

Hello Ben.

Thank you for your response.

My role has not changed, so my the essence of my question is - considering that my personal circumstances, is my role at the new location SAE?'

Is your answer that you cannot really advise as to whether it is SAE or not, and that I should make up mu own mind as to whether I wish to proceed legally based on the case examples provided above?

Kind regards, Colin

Expert:  Ben Jones replied 1 year ago.
Hi Colin it is not so much that I cannot advise you but whatever I say may not be what the tribunal finds. I can tell you what the law looks at when such situations arise and how a tribunal would determine the suitability of a new role, however the overall picture will be assessed and in the end a decision made, which the judge on the day believes is fair and reasonable. So whilst you certainly have an argument that the new position is unsuitable due to the added expenses and commuting time, I cannot promise you that this is the decision a tribunal would find should you decide to take it that far. Therefore, a risk would always exist. It would be very easy for me to say that you have a 100% case to challenge this and send you on your way to tribunal but obviously I have to be fair and honest and it would mean I cannot give you any sort of promise that you will succeed, especially as there are so many factors that could influence the outcome of a claim.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46809
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Ben.

I appreciate no solicitor can give a definite answer on the outcome of any potential legal case, nor a 'promise' as you state, but I was hoping for at least a 'good chance' or 'it's not advisable.

I won't be leaving any feedback, as I would feel I could give positive feedback as I'm left in the same position as prior to spending £24 for your advice. I must say I was impressed by your prompt replies,

Kind regards, Colin

Expert:  Ben Jones replied 1 year ago.
Hi Colin, it would be very easy for me to say you have a good chance and send you on your way but obviously I have to be honest and fair which is why I cannot really say. From what you have said you do have a case but I just cannot give you any prospects of success, although I would hope that it is better than 50% in the circumstances. The fees would depend on how far you take it. Initially you would get free help from ACAS in terms of negotiating with the employer over a financial settlement but if that does not work then you are only left with the option of making a tribunal claim. The issue fee to submit the claim is £250 and if it proceeds to a hearing and you wish to take it further then it would be an additional £950. You do not have to pay legal fees and can make the claim yourself and also if you lose you are unlikely to have to pay the other side’s costs so to go to a hearing with a judge you are looking at a minimum of around £1,200.
Customer: replied 1 year ago.

Ben.

Thank you for that, it's appreciated.

I'll give you a good rating now.

Kind regards, Colin

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