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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 have worked company as a seniorcustomer services

Customer Question

Hi I have worked for a company as a seniorcustomer services manager for 41 years. 12 months ago i was seconded from customer services to another area at the companies request for 6 months. during that secondment time the area i was responsible for in Cust Servicess was split between other managers and my desk was removed. At the end of the 6 month secondment I asked my manager for my cust services role back and he said there wasn't a role for me in CS and I had no alternative but to stay in my new role for now as he thought it was a comparable role. It really wasn't a comparable role and I really didn't want my new role. After a few months of stress I e-mailed my boss and said that as there was no role for me in Customer services any more i was giving my 12 months notice for retirement to finish in march 2016. Now 5 months later there has been a selection process for the CS managers in which i was not included. this means I have missed out on either a CS manager role or redundancy. I feel it is really unfair as if I hadn't been seconded to another area I wouldn't have given my 12 month notice in for retirement and would have been included in the selection process. can I complain to them ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What are you hoping to achieve?
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What was the agreement you had with the employer over you coming back to your original post after secondment - was that guaranteed?
Customer: replied 1 year ago.
there was no agreement. I have a letter stating that I was seconded for up to 6 months. After the 6 months I asked to return and he said there was no role for me at that time
Customer: replied 1 year ago.
Hi are you sending me a response ?
Customer: replied 1 year ago.
I would have liked to be considered for the CS role or given redundancy as I only gave notice to retire as i was told there was no role for me in CS and I didn't want to stay in my new role. the role profiles are completely different. I my old role I was a service delivery manager responsible for managing multiple teams. the seconded role is a technical role with no staff responsibility.
Do you think i will be entitled to any redundancy?
Expert:  Ben Jones replied 1 year ago.
The starting issue here is that there was no guarantee that you would return to your original role. There is no assumption in law that this would happen and it would only be an option if the employer has agreed this with you in advance. So if there was no specific agreement as to what happens when you finished the secondment, you are not actually guaranteed your old post on your return.
However, you can also consider this from a point of view of whether the employer actually had a right to second you in the first place. If no such right existed under contract, the employer would have acted against the terms of your contract. However, this is something that should have been raised at the time and you should not have gone on the secondment if you did not agree to it. Having accepted it and completed it and considering the time that has passed since, you have basically agreed to the employer’s variation of your contract and being sent on secondment even if no such right existed under contract.
At this stage your main argument is that this could potentially amount to 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.
You cannot force the employer to consider you for redundancy or pay you, but you have nothing to lose by approaching them.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben
Just on my original question, what would be the position if the agreement for my 6 month secondment was that after the 6 months I would return to my original role ?thanks
Christine
Expert:  Ben Jones replied 1 year ago.

Hello Christine, if you were guaranteed a return to your original role then obviously you would expect the employer to honour that, although redundancy could still occur if the employer needs to reduce its employee numbers.

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