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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46798
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Lightfoot, PE7 3EA I work in a security role with in house

Customer Question

Good morning , my name is ***** ***** PE7 3EA
I work in a security role with in house security , i work monday to friday , 6.30 am to 15.00 hrs one week and 12.30 until 21.00 hours i am attending a meeting today , they want me to work 12 hour shifts 4 days four off four nights i already told my manager that i didn't want to work nights or weekends , where do i stand legally i have worked for this company for 8 years
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months 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 9 months ago.

How long have you worked there for please?

Customer: replied 9 months ago.
hi Ben
Customer: replied 9 months ago.
company want me to go on shift 4 on 4 off days and nights , how do i stand they are making my shift redundant
Expert:  Ben Jones replied 9 months ago.

Hi Chris. My apologies, I note you have worked there for 8 years. Based on what you have described, what would be the ideal outcome for you given that your existing shift will no longer be available?

Customer: replied 9 months ago.
sorry 8 years
Expert:  Ben Jones replied 9 months ago.

Do let me know what the ideal outcome would be for you and I will then advise you of your options. 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 9 months ago.
ok thanks it will be tomorrow then
Customer: replied 9 months ago.
well i thought they i could go for a redundancy package but didn't want to show them that i was keen on it
Expert:  Ben Jones replied 9 months ago.

OK thank you. I will get back to you at the earliest opportunity. Thanks again.

Expert:  Ben Jones replied 9 months ago.

Many thanks for your patience. This is really going to be a change to your contract rather than a redundancy. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:

· Receiving the employee’s express consent to the changes.

· Forcefully introducing the changes (called 'unilateral change of contract').

· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.

If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.

This is your basic legal position. I have more detailed advice for you in terms of the constructive dismissal option and how it can apply to you, 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, UK Lawyer
Category: Employment Law
Satisfied Customers: 46798
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 9 months ago.
5
Expert:  Ben Jones replied 9 months ago.

Thank you. As mentioned in more serious circumstances 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 9 months ago.
Thanks Ben, they have taken onboard what I said to them , they will get back to me as and when they have finished the consultation, with the rest off the team , although it only effects two off us on this shift pattern .Many thanks if I need further help I will be on touch
Chris Lightfoot
Expert:  Ben Jones replied 9 months ago.

No problem, all the best for now

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