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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48210
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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In 1997 with 2 friends, I set up a small software house

Customer Question

In 1997 with 2 friends, I set up a small software house called MHSystems. I was a Director and employee until 2014 when the company, which was struggling, had to be sold off (cheaply) to my current employer Gemini Network Media. All the MHSystems employee were transferred under the TUPE rules. My job remained unchanged and my new job title was General Manager. My duties were broad but mainly: Business strategy, all aspects of HR and staff management, company administration and process, booking and liaising with company accountant, procurement and supplier relationships and all legal matters and contracts, In July this year, I was told that the company is changing and that I will now be responsible for accounts, KPI reports, credit control, contract admin and growth strategy for a new product. I have an HNC Business Studies qualification which is broad business management and I fear that my proposed new role is that of company accountant and sales - non of which I am actually qualified to do. Whilst I have over the years picked up Book-keeping, I certainly have no strategic sales experience. I fear I will not be up to the task of the new job and will eventually be let go. Has the General Manager's job been made redundant? Do I have to take on this new role? I haven't been given the option. I would greatly appreciate some advice. Kind regards, SAbine
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.

Please could you confirm how long you have been employed with Gemini Network Media in your current position? Please could you also tell me what you ideal outcome would be, given the circumstances?

Customer: replied 1 year ago.
I became an employee of Gemini Network Media on 13th June 2014. I am scared I will fail at the new job and would take redundancy if it is offered
Customer: replied 1 year ago.
Sorry, difficult to talk on the phone as I am currently in the office :(
Expert:  Ben Jones replied 1 year ago.

No problem at all and thank you, ***** ***** it with me. I am in court for the rest of today so will prepare my advice in a while 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 1 year ago.
Thank you, Sabine
Expert:  Ben Jones replied 1 year ago.

You're welcome.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. This could amount to redundancy because the term 'redundancy' can be found in The Employment Rights Act 1996 and covers:

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 (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).

The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:

· The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

· There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

· There is less work of a particular kind, but the same number of employees are required overall.

So if no one is required to do that job, or the duties are spread out amongst existing employees then it could indeed amount to a redundancy.

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.

So really you need to look at whether this new position is something that you consider suitable for your experience and qualifications, as well as personal circumstances, and work on that basis.

This is your basic legal position. I have more detailed advice for you in terms of the factors you can take into account when determining the suitability of this position, 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 Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. 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.

Customer: replied 1 year ago.
Wow, thank you. I was told during June that my new boss and I would "have a chat about how I saw my job in the future", I started putting together a detailed job description for the GM position on the assumption that we would talk about this. On the 5th July I was called in to the boardroom to "let's have that chat", I was a bit flustered as I hadn't printout out the job description I had been working on, but went in anyway knowing I knew the details inside out (I had been doing the job since 1997, pre Gemini takeover). My "new boss" (he is actually a consultant hired by the owner) started with "Let me tell you how we see your role moving forward" and he went to outline that job's key points from a notepad. I was speechless, and frankly didn't know what to say. This wasn't what I had expected at all. I asked him to please confirm in writing what he had just outlined to me, which he did after some prompting on the 13th July. In the revised (new?) job I will be doing accounting and spearheading a sales campaign for one of our software products. My HR duties: recruitment, contracts, salary and performance reviews, responsibility for job description, task allocation to engineers and general day to day office management duties have been passed to a colleague (Andrew - who showed me the new job description he received, I was not copied in on this communication, on the 13th July). This did dismay me as I got the feeling the changes to job specs a) not only applied to my position but b) had already been decided prior to my so called discussion meeting of the 5th July. After a few days of thinking about the proposed change to my role, I did wonder whether I should have been given the option of "your job is being made redundant because of the expanded team and the change in responsibilities to other staff; we are now offering you this new role (which does still have some aspects of your existing role as well as new sales function)". But the R word has never been mentioned so I began to wonder if the new owners were trying to implement major role changes without offering the option of redundancy - hence my contacting you. As I mentioned before, I have an HNC in Business Studies (which I studied for as an evening course between 1996 - 1998 in order to equip myself with broad business management knowledge to enable me to effectively run M H Systems, which we set up in 1997). I do not have book-keeping formal training or qualifications, although I can do day to day inputting into Sage and can read / check a P&L and do cash flow forecasting. My new roll formalises my accounting responsibilities without the proviso of "obviously we know you are not actually qualified to do this" and "Creating a growth strategy for the Aberdeen (a customer) Sheltered Accommodation Opportunity creating and developing the project but you won't have to do hard selling". This small concession to my "hard selling" fears is all well and good, but I have never directed a sales project and whilst Marketing is a part of the HNC, we used to have a Sales Director who did all the new market strategies and implementation, product pricing work etc.In a nut shell my question is, I suppose: Should I have been offered redundancy because a large portion of my duties have now been allocated to my colleague Andrew (the rest of the staff who will no report to him haven't been told yet) at the same time as this new roll for me was offered. Have the acting CEO (the consultant) followed due process? Thanking in advance for your further view and comments (apologies for the length note), kind regards, Sabine
PS: I won't do anything hasty, I prefer to be as sure as can be before taking this up with the new owner.
Expert:  Ben Jones replied 1 year ago.

Hi there, the issue is that even in clear redundancy situations, an employer may decide to ignore the requirement to make an employee redundant and try to fudge their way through this by making contract changes and changing job descriptions. No one can force the employer to go through a redundancy procedure even if there is a clear redundancy situation. In these circumstances the employee would be required to consider resigning and claiming constructive dismissal instead, with the compensation being similar to what they would have received in a redundancy situation. So you can negotiate for redundancy now and if it appears that they are unwilling to agree to that, then state that you will be considering constructive dismissal instead and they would then be potentially liable for covering your tribunal fees if you are successful, so it is in their interest too to try and resolve this now rather than drag it through the tribunal.