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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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When two organzations merge and the combined org is larger

Customer Question

When two organzations merge and the combined org is larger - revenue etc. Are the larger roles - with more responsibility considered new roles or do employees go I to a selection pool ? What constitutes new?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello does one organisation take the other one over or is a completely new entity created?
Customer: replied 1 year ago.
Im unsure - if there is a new legal entity does that make a difference
Customer: replied 1 year ago.
One isn't really taking over - more a case of merging to compete more effectively
Customer: replied 1 year ago.
Ben do you have a further response here
Expert:  Ben Jones replied 1 year ago.
Sorry I lost my connection for a bit. So are new roles being created and is there a surplus of employees after the merger? Also just trying to establish what you are hoping to achieve so I can direct my advice better.
Customer: replied 1 year ago.
There is a mix - some roles are two roles into one 'diminished' in terms of activies - also some new roles1. Does new entity mean new ts and cs?
2 in the example of the merge and 2 cfos. Becoming one cfo - the job is in fact bigger in the new org. Does this constitute a new job or are both cfos in selection pool? At what point is it new job ? 50% of role has changed or ? If it isn't new are both in selection pool? If it's new are both in refundant positions and being interviewed for the one new role ?Please get back to me as soon as possible
Expert:  Ben Jones replied 1 year ago.
Well the first consideration here is whether a law known as TUPE would apply. This would usually operate when a business transfer occurs and can also cover situation where two companies close to create a new one. In the event that TUPE applies, those employees assigned to the transferring businesses will have certain rights and in general can expect to keep their existing terms and conditions, including job role. However, if the merger has created a new structure where there is no longer a direct match for the previous positions, it could mean that all those who were transferring (or at least those whose jobs no longer exist) can all be placed into a selection pool to try and determine their suitability for these new positions. In terms of determining what is a new job, there is no specific way of doing that. You can’t say that a certain percentage change of duties would make it new – it is a question of fact and will vary from role to role and to be honest only a tribunal can decide that. If the new job is distinct enough to make it a new and different position, then both incoming employees who did a similar job in the past can be left to fight for it over a selection procedure. However, if due to the role requirements and duties, the ne from the larger company can show that it is much more like theirs, they could get automatically slotted in it, with the other person being at risk of redundancy. But as mentioned there is no exact science in determining the similarities of roles, it is really something examined on a case by case basis. Most employers would probably place both incoming roles in a selection pool with one rile available and one being made redundant or offered a different role, in order to maintain a degree of fairness an avoid conflict. This is your basic legal position. I have more detailed advice for you in terms of the situation where one of these people is facing redundancy and is offered a different position and how they can determine if it is suitable or not and I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your rating. So in the event that the employees are placed at risk and one gets the job and the other doesn’t then the unsuccessful candidate may be at risk of redundancy. 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.
Hope this helps.

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