Hello how long have you worked there for?
Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.
Don’t worry I am an English solicitor so I can still assist you – we have a UK law section. Sadly there is nothing specific in law which would automatically entitle you to get the same or similar pay to what the person above you is doing or what the person whose job you have taken on was getting.
Just because a position was paying a specific amount does not mean that everyone doing it will get that same pay. Every person’s rights are determined by their individual contracts. So your manager will have been employed under their own contract and that would have determined their pay. If they left and you were slotted into their position, your rights will be determined by your own contract. It does not mean that you ill automatically get the pay they were getting. They could of course offer you a new contract to reflect that pay but that is at the employer’s discretion. They could however leave you on your current contract and if that contract allows them to ask you to step up to this role and does not guarantee any pay increase they can rely on that to ask you to take up these duties and not actually offer you a pay increase.
At the same time such clauses would usually only be there to require you to take up these duties on a temporary basis. There has to be a very clear wording that states you can be asked to do this on a permanent basis for them to be able to ask that of you, otherwise you can argue that they are abusing their position and are unreasonably requiring you to take up this role on a permanent basis when they did not have the contractual right to do so. That could allow you to potentially claim constructive dismissal or change this further.
This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it can apply to you 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
Thank you. Just to be clear what were you hoping for in the circumstances if not the financial compensation for the work?
No I do understand you, although as mentioned some of the factors you were referring to and hoping for will be down to what is considered best practice or what would be morally expected, rather than what is legally required. So whilst the rights you have in terms of the pay are going to be somewhat weak assuming the employer is still adhering to your contract, the position you have been placed in could 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.