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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48209
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I was Tuped over in June last year, my job was temporary

Customer Question

I was Tuped over in June last year, my job was temporary promoted Site Manager in charge of the maintenance of a large prison, Carillion told me this was the role they wanted me to do, I've carried this role since then and have had no complaints for them, I have complained about the lack of support Carillion have given me, I asked for an early retirement quote in February,i have been off sick with stress since 15th March in that time I've received no support from Carillion, I complained and a meeting was arranged for 6th July 2016 this was my first contact first where I complained about the lack of support and informed them that this has pushed me toward taking early retirement, before the meeting I was told by a colleague that my job had been advertised and that someone had been appointed, I asked about this at the meeting and was told no one had been appointed yet and that they were still interviewing and that I could still apply for the job, I was told by the head of HR that the job was mine early in the contract and that I would not need to apply for it and that the job I would be appointed this made me ineligible for redundancy, now i'm told I have to apply, does this mean that I now should be made redundant, I've also put in a greivance about the lack of care I've received.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year 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 1 year ago.

How long have you worked there all in all?

Customer: replied 1 year ago.
I worked for the Prison service for 19 years before being Tuped over by Carillion last June
Customer: replied 1 year ago.
sorry 1st June 2015
Expert:  Ben Jones replied 1 year ago.

OK thank you and no problem at all; please leave it with me. 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.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. I do not see why you would be entitled to redundancy because for redundancy to apply there must be a redundancy situation to start with. If you were doing the job and the job does not disappear and they are just replacing you with someone else, that is not a redundancy. I fact redundancy only applies if one of the following is present:

The Employment Rights Act defines redundancy as:

1. Business closure – where the whole of the employer’s business is closed

2. Workplace closure – closure or relocation of one or more sites

3. Reduced requirement for employees to carry out work of a particular kind

So if the job remains and the same number of people are required to do it, there is no redundancy.

What can’t really happen is for the employer to just replace you if you have not resigned or been dismissed. They have clearly placed you in this job permanently and you should be allowed to remain in it until your employment has terminated or you are no longer capable of performing the work. They cannot just replace you out of the blue. If they have done so or been plotting to do so behind closed doors and suddenly it appears that they were trying to remove you, then you may consider taking the matter further. You can either resign and claim constructive dismissal or if you ae dismissed – claim unfair dismissal.

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

Ben Jones and 2 other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. As mentioned, 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 1 year ago.
Hi Ben thanks for the for the reply please read my more detailed report on what as gone on over the last year,
I was Tuped over in June last year, my job was temporary promoted Site Manager in charge of the maintenance of HMYOI Feltham, Carillion told me this was the role they wanted me to do, I've carried this role since then and have had no complaints for them, I have complained about the lack of support Carillion have given me, I asked for an early retirement quote in February after my assistance was seconded to another prison without any consulation with me, i have been off sick with stress since 15th March in that time I've received no support from Carillion, I complained and a meeting was arranged for 6th July 2016 this was my first contact,with anyone from Carillion, I informed them that this has pushed me toward taking early retirement as my only way out, before the meeting I was told by a colleague that my job had been advertised and that someone had been appointed, I asked about this at the meeting and was told no one had been appointed yet and that they were still interviewing and that I could still apply for the job, I was told by the head of HR that the job was mine early in the contract and that I would not need to apply for it I would be appointed and because i would be the Site manager this made me ineligible for redundancy even thou my substantive grade was assistance site manager which was in scope ,this was implemented in January this year, feel I have been push into taking early retirement on a reduced pension because lack of support I've received from Carillion before and after I went off sick, to ask me to apply for my own job as caused me even more stress, what you said links both my claim for redundancy and lack of support together to a construct dismissal case, I have put a formal greviance in on the 14th July and wait for a date. hope this makes senceThanksColin
Expert:  Ben Jones replied 1 year ago.

Hi there I saw that at the beginning of your query which is what I based my replies on