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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47904
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a senior director (by title only ) in a Plc business

Customer Question

Hi
I am a senior director (by title only ) in a Plc business and due to reorganisation I have been offered a new role (same pay ) but current role is in a region only and new role is national .
Employer won't pay more salary for new role,which i have a big issue with , alternative is redundancy and leave (I think).
I still haven't accepted the role altough time and options are limited. Employer hasn't done this formally , all been done by discussions I've never been placed at risk but old job will cease to exist in old structure.
I have 6 months notice period and wondered if I leave and go to competition are employer still in position to hold me to this ? Am I entitled automatically to a trial in new job of 4 weeks - and possibly then still leave with redundancy and notice ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how long have you worked there for?
Customer: replied 1 year ago.
8 years
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. If it ends up in redundancy your employer has the following options:· Allow you to leave immediately by paying you in lieu of notice· Holding you to your notice period and expecting you to continue working as normal until it expires (however, you should only be expected to work according to your existing contractual duties and responsibilities)· Place you on garden leave – keep you on their books for the duration of the notice period and pay you as normal but not expect you to work and basically send you home for the duration of the notice period. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Customer: replied 1 year ago.
Hi thereHe question for me is is going from a regional role to a national role a change in terms and conditions enough to warrant this 4 week trial ? And it's from a general management role to a sales role.I really am thinking of this from the perspective of not been held to my 6 month notice period and non compete exercised if I can find another position in the 4 weeks from when I start the new role , redundancy will be 8 weeks at Statutaury which isn't a deal breaker
Expert:  Ben Jones replied 1 year ago.
It does appear to be a different role so you can push for a trial period. The issue is that if they keep the current role in place you can still be held to your notice period by being required to work in it (they can't force you to work in the new role if it is not suitable, but as mentioned they can still hold you to your notice period by placing you on garden leave). Even if they terminate your employment immediately by paying you in lieu of notice then any post-termination restrictions could still apply
Customer: replied 1 year ago.
Hi - last point is my old role won't exist anymore due to restructure so does that effect things ?
Expert:  Ben Jones replied 1 year ago.
if your old role will no longer exist and you are not going to continue in the new position but are made redundant instead then there are two options:
1. Pay in lieu of notice and immediate termination, although post-restrictive covenants can still apply
2. place you on garden leave for the notice period which means you remain their employee and cannot work for another company in that time as you will be employed and paid by the current employer but just not undertake your duties
If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 1 year ago.
Ben - the thing is , a normal redundancy process has not be followed ...this has all been informal ie I met my boss for another meeting and he told me we were restructuring and he wanted me to take on this new role - and my old job wouldn't exist anymore , I've not actually approached the subject to say "hold on a moment what if I don't want this job ; I've been trying to negotiate more money for the new role as its a bigger job but they've said no now ..I guess the question is if I said in not accepting the role they won't be able to go back to the old job now so they will offer me a package to go ...I guess this will be via a compromise agreement ..:.Is there a clever way I can buy a bit of time (month or so to try and get another job ) and then not be held to my notice period of 6 months considering they are effectively in breech of contract in my view ie no consultation or process for job selection ..?
Expert:  Ben Jones replied 1 year ago.
Hello, the issue here is that They have approached you to offer you this new job but that does not automatically place them in breach just yet. They have not placed you in it without your consent – that would be a breach. See it as an internal move where you apply for a new job which they have given you the opportunity to do. If you say no to it now, they could still go ahead and conduct a fair redundancy procedure to cover their back, so it all depends on what they do next and if they simply remove you from your current position without a redundancy process. As such, legally you cannot use that against them until it has actually happened. I do expect them to use a settlement agreement if they decide to part ways with you but the contents of such an agreement are entirely down to you and them to negotiate over. So whatever you say you cannot force them to let you go without having to work your notice period unless you are asked to work in a position which goes against your contract, i.e. Something which you we not employed to do. It is all about negotiation here and using any actual breaches they have done, or you could try and make their job easier by volunteering to go early and saving them the requirement to have to go through a formal redundancy process – that could be used as an incentive to get what you wish. Hope this clarifies?
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Perfect thanks
Expert:  Ben Jones replied 1 year ago.
You are welcome all the best