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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46763
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I've been working with my current employer for over 10

Customer Question

I've been working with my current employer for over 10 years, and in my current role for three years. My current role covers regulatory affairs, marketed product support (quality) and risk management. The employer has now told me that they want to restructure into three areas, 1) regulatory affairs, 2) marketed product support (quality) plus risk management, 3) quality project management. They have said that if I accept option 2) today, I can have the role, but if I want either option 1) (my preferred choice) or 3), I will have to apply for the role. This feels like I am being rail-roaded into a job that I don't want and which also ruins my career path. I have always had good appraisals and I don't feel that I have ever been adequately supported in my role covering three areas, either with adequate training or line management support (which has been practically non-existent). Am I correct in my belief that this could be seen as a constructive dismissal situation?
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 7 months ago.

What reason has been provided for having to apply for the other 2 positions?

Customer: replied 7 months ago.
None. They have simply said I can have one option now if I accept it, but if I don't and would prefer either of the other two options, I will need to apply for it. I also strongly believe that a colleague who left the business (after having created certain issues that I have now cleared up) has now returned to the business but is "favoured" by my line manager, so is likely to get the job and the application process is likely to be a ruse to "legitimately" maneuver me out of my preferred role.
Expert:  Ben Jones replied 7 months ago.

OK thank you, ***** ***** 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.

Customer: replied 7 months ago.
I'm under pressure to go back with a response.
Customer: replied 7 months ago.
Hi again, Ben. They have actually suggested that I should take the role offered as they are asserting it will be better for my health. Their argument is utterly illogical because, a) this role is arguably much more stressful than either of the other two roles and is a significant step backwards in mt career; b) I was only off for two weeks because of the stress levels of trying to do three roles with zero management support or training approvals (for which I have email evidence) and inadequate resource levels (which they are now trying to rectify by splitting my role and adding more managers.
Expert:  Ben Jones replied 7 months ago.

Many thanks for your patience. This appears to be a potential redundancy situation. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy.

So in effect they are reducing the need for employees to do the job you are currently doing and are creating new jobs to cover these tasks. It is difficult to challenge this because the employer is free to reorganise its operation as it sees fit. In this case your job is being split into three distinct areas and your employer should offer you these jobs as a suitable alternative employment. When the law says they should offer you these jobs that does not guarantee you will be placed into them and you could be asked to apply and go through a competitive recruitment process.

So from a legal point of view, what they are doing is not ideal for you but can be justified if necessary, so a constructive dismissal claim looks like a difficult thing to pursue in the circumstances. You may be better off trying to negotiate with them and there are ways you can try and do that which I can cover if needed.

This is your basic legal position. I have more detailed advice for you in terms of the negotiating options you have in this case, 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

Customer: replied 7 months ago.
But the work required and position still exists in its entirety, they are just dividing it into different sections.Are they allowed to only offer me one of those segments in order to arguably move me out of one role in order to (allegedly) move someone else in?
Expert:  Ben Jones replied 7 months ago.

The work does not have to completely disappear for there to be a redundancy. They should offer you all suitable positions, but if some will have others competing for them then you can be asked to go through a competitive process. They could offer you one without a competitive process if no one else is going for it. If you are having to go through a competitive process then your way of challenging this would be if you were not selected fairly.

Hope this clarifies?

Expert:  Ben Jones replied 7 months ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Customer: replied 7 months ago.
Hi Ben. My concern is that when you say, "the work does not have to completely disappear for there to be a redundancy", in this case ALL of the work is exactly the same - none of it at all has disappeared. They are simply taking my job, which I've been saying needs more coal face resource for some time, and are dividing it up into the parts sneed only allowing me to move into the least favourable option. They say that I'll have to reapply for the other two segments, even though I believe this is a ruse for them to actually appoint a different person. Surely they can't simply divide a job into three and l road me into the worst of these?
Expert:  Ben Jones replied 7 months ago.

No work needs to disappear at all – the same amount of work could remain but just fewer employees needed to do it and that would still amount to a redundancy. So they could dismantle a job and spread it out amongst others, so requiring ne less employee to do that particular job and that can still be legal. As mentioned I can discuss options on taking this further if needed

Customer: replied 7 months ago.
they're allowed to take 100% of my job, divide it into three parts, and only allow me the option of one of those three parts and it's legal?
Expert:  Ben Jones replied 7 months ago.

you are being offered all three parts - remember that being offered does not mean just handing it to you on a plate, it an require you to partake in a competitive selection process

Customer: replied 7 months ago.
But they can make one option guaranteed "it I accept it now" and the other two not guaranteed by making me enter a competitive selection (interview) process where's I know the main boss has a personal favourite that I believe he wants to have the job (so hardly a fair process)?
Expert:  Ben Jones replied 7 months ago.

I can continue assisting and explaining you situation but please remember to leave your rating otherwise I cannot continue thank you

Customer: replied 7 months ago.
Sure, no problem. I was going to rate you (highly) once we had finished the conversation and clarifying the various outstanding points.
Expert:  Ben Jones replied 7 months ago.

I have seen many engineered redundancies which are simply impossible to challenge. The employer can do what they have done here - split the job in three and offer you the opportunity to apply for all three new jobs - some may not have competition so you can take them straight away, others may have other candidates and you may have to compete against them. Unless you can show that the selection process was clearly unfair and someone was chosen in preference to you without any reals reasons then it can be challenged, but otherwise it can be difficult

Expert:  Ben Jones replied 7 months ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46763
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 7 months ago.
Hi Ben, are you still able to offer any advice on negotiating options please? They have now issued me with a letter notifying me of risk of redundancy. My team are shocked and think it appears like victimisation as I was signed off work with anxiety/panic attacks for 2 weeks. Another person in the team is also now signed off work with anxiety. We really are both hard workers but just couldn't keep going like that for so long with much pressure and no support from our director. I love working here and just want to have a reasonable work load and carry on in the role I am doing. No logical reason has been given for dividing the role except stating verbally that it is better for my health and that as the other person is now signed off for anxiety, it is a business need that I focus on covering their role. Are they really allowed to leave me unsupported with huge workload and then when I ill, the response is to make me redundant the month after I return to work? Any ideas for negotiation very welcome thank you.
Expert:  Ben Jones replied 7 months ago.

You could try and approach this under stress rules - a good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

You can 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 instead of being made redundant and possibly claiming against them. 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.

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