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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48761
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I took on a secondment at work starting in Aug 2014 I signed

Customer Question

I took on a secondment at work starting in Aug 2014 I signed a letter stating that the secondment would end on the 31st August 2015 and should funding be extended the job would again be opened up for all other workers in the department to apply for. They are now saying that I can not go back to my old post and must stay. If I had known it was a permanent position I maybe would not have applied. The HR manager also signed the letter and it clearly states that I return to my previous post at the end of the secondment.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello how long have you worked there for?
Customer: replied 2 years ago.
16 years
Customer: replied 2 years ago.
Hello 16 years I have worked there.
Customer: replied 2 years ago.
Hello you still there?
Customer: replied 2 years ago.
I just sent you the letter I think . Have you got it?
Expert:  Ben Jones replied 2 years ago.
Yes I will go over it now
Expert:  Ben Jones replied 2 years ago.
What happened after the secondment was due to finish at the end of August?
Customer: replied 2 years ago.
I continued in the secondment
Expert:  Ben Jones replied 2 years ago.
Was that your choice or the employer's and how long was it understood you would continue in it for?
Customer: replied 2 years ago.
I asked what was happening and was told by my line manager that she did not know so I just continued to turn up in the office everyday and continue working for the get set project I was never asked if I wanted to continue indefinitely.
Expert:  Ben Jones replied 2 years ago.
does the old post actually still exist and why can you not go back to it?
Customer: replied 2 years ago.
While I was on secondment learner services had a restructure new contracts were given for my old post uping contact hours and including a few extra duties for the staff. I asked at the time about my contract as I was still a learning support worker and was told because I was on secondment my contract would be looked at at a later date along with other staff in the get set project. I have said I have no problem signing a new contract for my old post of learning support worker.
Customer: replied 2 years ago.
So the old post is there.
Expert:  Ben Jones replied 2 years ago.
According to the terms of the secondment, which were contained in the letter you were given, you were guaranteed a return to your substantive post at the end of your secondment. Even though such a guarantee existed, it would never be a 100% guarantee that this will happen and there are circumstances where the post could cease to exist or a restructure has changed it and there may no longer be the same post available. So you should look at such a guarantee only really applying if no changes had occurred during the time you were on secondment. If the employer can no longer slot you back into the old post, then they must either offer you a suitable alternative, or they will have to consider making you redundant. Leaving you on secondment permanently is unlikely to be a suitable alternative so you can consider rejecting that and asking for something suitable with your employer or to be made redundant and allowed to move on. This is your basic legal position. I have more detailed advice for you in terms of your next steps and what you can do to take it further, which 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
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Expert:  Ben Jones replied 2 years ago.
Many thanks for your rating. So as mentioned the first thing you should do is approach the employer and ask them to reconsider their position and offer you a suitable position with them or to make you redundant. If they refuse, then this could potentially amount to constructive dismissal, which occurs when the following two elements are present:{C}· Serious breach of contract by the employer; and{C}· 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. Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort. Hope this helps.
Customer: replied 2 years ago.
Thanks so much. I shall write formally asking to return to my old post and take it from there.
Expert:  Ben Jones replied 2 years ago.
You are welcome best of luck