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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I am a financial controller in a group company which has been

Resolved Question:

I am a financial controller in a group company which has been shut down.
I would prefer to made redundant.
I have been offered an alternative position in another group company which does not have an existing accounts dept or Financial Controller position. I have asked to design and create the position.
Can this be a suitable alternative when it doesn't currently exist and will take at least 3/4 months to create?
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.

Ben Jones :

What would happen in the initial 3-4 months of this job in your opinion?

Customer:

Hi Ben

Customer:

At the moment the financial facility/function for this company (say Co A) is carried out by the parent company (say Co B) in Northern Ireland. Therefore to transfer the financial from Co B to Co A it would be necessary to design and create an Accounts system and to recruit personnel maintain it under my control. There are a re number of serious difficulties to be resolved before this could be achieved and therefore it could take a lot longer than 4 months

Ben Jones :

And in that time you would not be doing anything similar to your current job?

Customer:

my current position is based in a premises which will soon be vacated. It is expected that people will move to the new location on 31/3/14. initially I would finalise the accounting issues of the old company and then I would be expected to move location and I would be expected to create this new job and department.

Ben Jones :

How long have you worked there for?

Customer:

25 years

Ben Jones :

ok let me get my response ready please

Customer:

okay

Customer:

.By the way Ben, my understanding of the law is that the employer has to give a job description of the 'suitable alternative' within a month of the redundancy and that the employee has the option of a months trial. In this case there is no job description because I would have to create it and it very likely that I would not accept it because of the other difficulties

Ben Jones :

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.


 


The timing of the offer must be such that it is made before the end of the employee’s current employment and the form of the offer must be such that it sets out the material terms in sufficient detail, explaining where the proposed employment differs from the employee's current employment.


 


So the main issue is what makes an offer suitable and when can an employee reasonably refuse it. The most common factors that would make an offer unsuitable are:



  • Job content/status – drop in status, substantial changes in duties, etc.

  • Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, sick pay, holidays)

  • Working hours – change in shift pattern, removal of overtime, extension/reduction of working hours

  • Change of workplace – new location making it unreasonable to travel to the new place of work

  • Job prospects – going from permanent to temporary work, becoming self-employed or being employed on a fixed-term contract.


 


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.


 


So it is important to consider whether any offer that has been made is suitable or if there are reasonable grounds to treat it as unsuitable and safely reject it, opting for redundancy instead. Even in clear cases of a job being unsuitable the employer could still try and argue that it was and that the employer unreasonably refused it. In these circumstances it means that you will have to pursue them for your redundancy payment through the employment tribunal instead.

Customer:

Thanks Ben, Can a job be unsuitable because it doesn't exist and even though I would have to create it. I feel that it would take at least four months and even then it would probably not be similar because one was a multinational and the other is effectively a family business giving very little autonomy/authority/status to its managers

Ben Jones :

yes that could happen, you should be looking at what is there now because no one can guarantee what will happen in the future and if the plans will actually materialise

Customer:

that's great Ben, Thank You very much ..

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