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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46774
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Jones A colleague at my hospital provides a

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For Ben Jones A colleague at my hospital provides a particular service that the Trust is discontinuing at end of March. She has been told she will be "TUPEd" across to an alternative provider however the alternative provider has no job for her. She has been told that redundancy is not an option. If she is being made redundant and not found alternative work is redundancy not automatic?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how long has she worked there for?
Customer: replied 1 year ago.
22 years
Customer: replied 1 year ago.
she has worked at the Trust for 22 years
Customer: replied 1 year ago.
Hello! Are you still there??
Expert:  Ben Jones replied 1 year ago.
Apologies for not getting back to you sooner, I experienced some temporary technical issues as y laptop stopped working and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query. If she is being TUPE’d over to a new employer, they have a legal obligation to take her on and preserve her existing terms and conditions. So ideally, she should transfer over to them in the same job she was doing before the transfer and on the same terms. However, sometimes that is not always possible, for example the new employer may not operate her job or not have space for her. If there are others doing that same job already and she is told there is no space for her just because she is the new incoming employee than that would be automatically unfair and can be an unfair dismissal. In any event, if they state that there is no job available for her and there is also nothing else they can offer her which is suitable, that would be a redundancy situation. They should therefore make her redundant and ay her any redundancy she is due. She cannot force them to do that and they could refuse to meet their obligations. If that was to happen, she can consider making a claim in the employment tribunal for constructive dismissal and to pursue them for the redundancy she is due. This is your basic legal position. I have more detailed advice for you in terms of the steps she needs to follow to pursue these options, 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
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46774
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.
yes please outline what steps she should next take. There is no job for her at the other provider - it is a temporary solution anyway. She wants redundancy.
Expert:  Ben Jones replied 1 year ago.
Thank you. So as mentioned 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. 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 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 she cannot be treated detrimentally for suggesting it and it would not be used against her.

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