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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Is it reasonable to refuse a lower grade ring fence job and

Customer Question

Is it reasonable to refuse a lower grade ring fence job and ask for voluntary redundancy. My employer has deleted my grade 6 post and ring fenced me with same duties grade 5 job. Can I refuse and will I be entitled to redundancy.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Have you asked your employer about this?

Customer: replied 1 year ago.
No at the moment I am off work with work related stress and I have just been informed my colleague about new structure letter I will be getting in the morning. I do know my company will do anything they can to avoid redundancy payment.
Expert:  Ben Jones replied 1 year ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 1 year ago.
Thanks
Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. The first thing to note is that 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. Job status can be a reason to reject an offer and argue it is unsuitable, however if there is a dedicated ringfencing policy which has been applied then it is possible for the employer to counter-argue that that it was a suitable offer.

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.

One thing is for certain – you cannot force the employer to agree redundancy and only a tribunal can determine if the offer here was one of SAE. Therefore, if you cannot resolve matters with the employer you will have to consider resigning and claiming constructive dismissal to apply your rights.

This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how to apply it here, 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.
Can you possibly clarify does a lower grade job with a financial impact of over £2000 a year is a suitable alternative employment. Doing exactly the same job under different title.
Expert:  Ben Jones replied 1 year ago.

No not necessarily, but then again it depends on the circumstances. For example if you were on £100k a year and dropped by £k then that is not really that unreasonable. But if you were on a £20k salary a £2k drop is 10% so it will have a greater impact. There is no specific maths or rules involved here, it is what is reasonable in the circumstances and only a tribunal can decide that with certainty but you may certainly argue your case

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