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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have been working in Royal Mail since 1996 as postman, I

Resolved Question:

I have been working in Royal Mail since 1996 as postman, I was later upgraded as acting manager since 2003, till date. I am now been told that my position will revert back to my original postman grade. Is Royal Mail justified to do so. I went through acting manager courses as demanded by the company. There were some others that were just given an automatic promotion without going through any of the acting manager course.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Have they given you any reasons for this change?

Customer: They have not actually said anything, but our union rep. Met with the Mail Centre manager who makes decision, and I was told that they are proposing to compensate us( we are 4 in this category) and ask us to go and work in another branch as postman. We were given a temporary promotion in 2004 after completing a year trial period as acting manager. It was in 2007 that we were again asked to go for assessment, of which 15 were assessed, 8 passed. of these 8 that passed are myself and 3 others who are now being asked to revert back as postman
Ben Jones :

Were you told that the acting up was just a temporary measure at the time?

Customer: As at 2004, we were told that it will be temporary depending on the managerial template that was on then
Customer: Waiting for reply
Ben Jones :

Ok so you were asked to work as an acting manager in 2003 and have since worked in that post. Whilst initially this may have been intended as a temporary measure, as most acting up posts are, due to the rather long time you have been doing this job it is likely that you can claim permanent rights over it as it is likely to have become a contractual term through custom and practice.


 


This means that by trying to place you back into a lower role they will be changing your contractual terms and conditions. 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.


 

Customer: Another employee from a closed down unit,of the same region, and who has jut been acting within the last 2 or 3 years , got transferred to our unit, and has just been promoted. These were one of the reasons of our grievance that we mandated our rep to seek explanation. The management agreed that they have been unfair with us for being in that position since 2003. Those before us in 2004 we given automatic promotion for acting more than 1 year
Ben Jones :

the policy of automatic promotion after a year would be too old to rely on if it happened in 2004, however more recent examples can certainly be used in your arguments

Customer: It was in 2004 when this automatic promotion was no longer in place, that we were told to go through a managerial course designed by the company in 2007 that we passed. It was after that that those who did not pass the training and the board we immediately asked to revert back as postman/postwoman . We have since remain acting
Ben Jones :

the stronger argument would be the length of time that you have been doing this job with no indication that it was still temporary, as mentioned it is something that you can raise as having become an implied term through 'custom and practice'

Customer: It was the custom that all managers in the company started acting and later got promotion including the Mail Centre manager himself. All operational managers in Royal Mail started as a postman/post woman. We were the first to o through the managerial training and assessment
Ben Jones :

precisely what you need to rely on and bring up to aid your case. However, at this stage it is simply a matter of pursuing it through the official routes as described above, then depending on the outcome you can consider your next steps again as described above

Customer: That is exactly what the 4 of us are hoping to do. We have requested our rep to request explanation. We are only waiting for the black and white reply before deciding whether we are going to Industrial Tribunal. We are just trying to seek expert advice beforehand.
Ben Jones :

yes, well the law is as explained, the issue is even if you have all the se rights the employer could still try an ignore them which then means you need to seek to apply them through other means, such as the tribunal, so time will tell how best to proceed

Customer: Thanks, XXXXX XXXXX own professional experience, what do you think are the likely thing, considering the length of time on this position without being considered for a promotion ?
Ben Jones :

well that is the issue, even with the best available case to help your position, the employer could choose to ignore that so at this stage it is very much in their hands

Customer: Thanks
Ben Jones :

so stick to your guns, raise all possible defences as explained and hope for the best for now, then it is a mater of upping your game if you need to go further

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