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Ben Jones
Ben Jones, UK Lawyer
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I need advice on how binding the terms of my employment

Resolved Question:

I need advice on how binding the terms of my employment contract are. I moved jobs on a 'level transfer' within the organisation I work for, where the new job was classed as 'non-operational' but my wages remained at my previous 'operational' level. This should mean the company have to offer me a job role at my original pay grade at the end of the 5 yr transfer. However, I have been told by my manager that as there will always be other people who are on transfer / apprenticeships etc I will never be offered a job, but will always have to apply and go through the interview process for a position at my original pay grade. I have had to apply for 2 jobs this way, and been unsuccessful in both. At the end of my transfer I will drop £4000 in wages if the company do not honour their contract. The HR policy is given below:
Level Transfer
1.1 Operational to Non-operational
If you transfer from an operational post to a non-operational post at the same pay band level - for example pay band 5(Op) to pay band 5 – you will be considered to be undertaking a ‘tour of duty’. A tour of duty will normally last up to five years. In some circumstances it may be slightly shorter or it may be extended by two or three months without penalty to you, where there is difficulty in identifying a suitable post.
If you transfer from an operational post to a non-operational post at the same pay band level, you will transfer on your existing operational salary. For the duration of your tour of duty, you will continue to receive pay increases and will thus retain your higher operational pay. You will also continue to work operational hours – 44 hours full-time, excluding lunch breaks, with no entitlement to overtime/travelling time or on-call allowance.
Towards the end of the five year period, you will be expected to transfer back to an operational post and a suitable post will be offered. A suitable post will be one in the same pay band as the one currently occupied, in a part of the country, or a part of the FC, which takes account of any preference you may have. This clearly places the responsibility on management to ensure appropriate forward planning, although you may make your views known to your managers or to the Resourcing Team, HR Services at any time.
If you choose to remain in a non-operational post, you will lose your higher operational pay at that time and will move onto the equivalent salary in the non-operational pay band. This salary will be equivalent to your position in relation to the maximum which you were on in the operational band. You will also begin working non-operational hours– 37 hours full-time, excluding lunch breaks; with eligibility for overtime/travelling time and on-call allowance, where appropriate.
(Sourced from HR Procedure Pay 13 | Version 1.14 | HR Policy | 14/12/2015)
Submitted: 10 months ago.
Category: Employment Law
Expert:  Ben Jones replied 10 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 10 months ago.

How long have you worked there for all in all? Please can you also tell me how long after initially starting were you transferred? Thank you

Customer: replied 10 months ago.
I have worked for the organisation for 10 years, and transferred just under 4 yrs ago
Expert:  Ben Jones replied 10 months ago.

OK thank you. Thank you also for the live phone call request. I am unable to talk at the moment as I am in court today but please leave it with me and I 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 10 months ago.
Thanks, ***** ***** forward to hearing from you
Expert:  Ben Jones replied 10 months ago.

No problem at all

Expert:  Ben Jones replied 10 months ago.

Many thanks for your patience. Looking at the terms you supplied, they state that at the end of the tour of duty you would be expected to transfer to an operational post, with an expectation on the employer to offer you one. So the only reference in terms of your move back to an operational post is that. It does not state that an offer may be made or that it is not guaranteed, it specifically states that a suitable post ‘will be offered’. This is a wording that indicates a guarantee, not a conditional statement. So if the employer is not offering you such posts you may argue that they are acting in breach of contract. This could allow you to consider taking the matter further, for example through a constructive dismissal claim.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to take this further and what you need to do, 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
Customer: replied 10 months ago.
Thanks for your reply, which confirms my thinking. I look forward to your further response in terms of options to take the matter further. At this stage my preference is to ensure that the company are in no doubt of their legal obligation, and what a breach of the contract would mean but advice on all options would be very useful to plan ahead.
Expert:  Ben Jones replied 10 months ago.

Thank you. the main option or you here would be 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.

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