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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47903
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been selected (I am the only one being made

Customer Question

Hi,
I have been selected for redundancy (I am the only one being made redundant).
I have been offered statutory redundancy pay which is 3 weeks pay, in addition to one month's salary. However, I am also being asked to work 3 months notice period.
The reason behind my redundancy is the restructure, of the department. However, if im being made redundant, can I be made to work my notice period even though I've not worked in the capacity of my role for the past 3 months?
Please help.
Many thanks *****
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Hi Tina. How long have you worked there?

Customer: replied 1 year ago.
3yrs
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. From what I understand you are being asked to work your notice period in a role which you have not been doing, i.e. a role you have been placed in following the restructure. Whether the employer can do that will depend on your contract of employment. You need to check if there is anything in there which allows the employer to take on additional or different duties as and when required by the business. Such flexibility clauses are common so it could be that tour contract has such a clause in it. It would not allow an employer to permanently change your duties, but it can allow them to ask you to undertake a different role for a short period of time, such as during your notice period. If no such clause existed and your duties were clearly defined and this new role does not match them, you can argue that the employer is breaching your contract. You should then be allowed to either remain in your contracted position, be placed on garden leave or be paid in lieu of notice. If they refuse to do so your options would be to continue working in that role regardless, or resign with immediate effect and claim constructive dismissal. You will however be giving up your pay for the notice period and likely your redundancy pay and will have to go to tribunal to pursue them for these so it does become risky and complicated. I would therefore suggest negotiating with them and perhaps raising a grievance to complain about this but maybe stop short of the constructive dismissal option.This is your basic legal position. I have more detailed advice for you in terms of the steps for constructive dismissal, should you decide to go down that route, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. 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.

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.

Customer: replied 1 year ago.
Thank you for your feedback Ben. This is really useful information and I will be back in touch as soon as I have had my meeting with the HR director tomorrow afternoon.
Expert:  Ben Jones replied 1 year ago.

No problem thanks