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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I work in a senior public sector role. A recent restrucure

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Hi, i work in a senior public sector role. A recent restrucure has been agreed that removes my post. A new higher graded post has been approved but i have been quietly told not to apply. This will give me a couple of choices, early retirement with no enhancements or redeployment to a lower grade with severe financial implications. I feel pressured into preparing the team for the incoming manager but know this is not in their interests and will reduce performance. My boss does not understand the work they do and will disappoint their many clients. We were not consulted at any part of process and were not permitted to see the proposals.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What queries do you have about this situation please?

Customer: replied 1 year ago.
My concern is that i will be out of work and unlikely to find alternative employment. Also that my small team will be broken up and their skills lost. The council report that proposed the change to the elected members was classified as 'confidential' so i havent seen it and dont know why the restructure was approved. It feels very uncomfortable and l dont know how to handle it. I am being pressurised to start work immediately on the new projects. Do i need to comply or should i consider the immediate needs of my team and our existing work during the 30 day consultation period. Or will that make me look churlish and difficult to manage?
Should i fight, speak to my union and challenge the decision? Or give in, take the lower graded job and keep a roof over my head?

Hi there, sorry I was offine by the time you had replied. It is a difficult situation you are facing so I will try and strip it back to the legal basics to try and explain your rights in a more digestible way.

I would say that in the circumstances you are facing a likely redundancy situation. The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. 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, which can be found in The Employment Rights Act 1996:

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.

In your circumstances it appears that the third reason above is the most likely that applies here.

The next important consideration is that 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.

You have been told not to apply for the newly created role but if that is considered suitable then you do have the right to be offered it and whilst there is no guarantee you will be selected for it, at least you are able to apply if needed.

The issue with trying to challenge the restructure is that the employer has the final say to decide what their business needs and whilst it may not be in the best interests of clients or the employees involved, as long as they can show that the criteria for redundancy has been met, they are allowed to proceed with it.

In the circumstances your options are:

· Accept the alternative role offered to you, even if it is not entirely suitable but knowing you still have a job and in the meantime you can look at alternative roles

· Reject it and opt for redundancy instead

· Try to challenge the decision internally but as mentioned the law really only looks at the criteria as to whether redundancy exists and the procedure followed afterwards (i.e. consultation, alternative employment etc)

· Try to agree a settlement to exit the company

There is no right or wrong option, it is what works best for you personally, which is why I cannot tell you which one to go for.

This is your basic legal position. I have more detailed advice for you in terms of the option of trying to negotiate a settlement agreement, 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 I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Customer: replied 1 year ago.
Thank you for your reply. I wonder if their direction not to apply for the higher graded job would put them in a difficult position if they are obliged to offer me a similar/alternative post? Perhaps the discussion i had with them (not to apply) is to legitimely indicate i don't want it. There has been no talk of redundancy so far only voluntary retirement. Do i need to start working on the new tasks? They seem keen to get things going in a new direction. If i don't they might think im being awkward.

They have to offer you a suitable post but then it is up to you as to whether you apply for it. They cannot stop you from applying but perhaps they have told you not to bother applying as you may not be found suitable for it. They should not pre-empt the outcome of the application and you need to be given a fair chance to apply. But they certainly cannot advise you not to apply and then claim you had unreasonably refused the job offer. Also the options following this are redundancy or if you wanted – voluntary retirement. They may be trying to only offer retirement as they do not have to pay out redundancy but do not be pushed into this and stick for redundancy if that is the way you want to go. As to working on the new tasks you should only be asked to do this if it is covered under your contract

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks again. I think i will indicate i intend to apply for the higher graded job even if i am not selected. I will meet with the trade union official and ask for their support should i need it. If they eventually offer redundancy do i have to take it? Thanks again

What would you do if you refuse to take redundancy?

Customer: replied 1 year ago.
Hope they will offer another job?

yes but they only have to do so if something suitable is available, if it is not then you will either have to resign and get nothing, or go for redundancy

Customer: replied 1 year ago.
Thanks. Ill think seriously about it

You are welcome, best of luck

Customer: replied 1 year ago.
I feel as though I have been bullied into this position. Not being involved in the discussions leafing up to the restructure, having my work effectively undertaken by another team under another name prior to the decision surely amounts to intimidation ?

Well it's not intimidation really, not legally anyway. Unfair or unreasonable treatment, perhaps. But you should not be bullied into the role anyway, it either is suitable or not and that s what determines your rights

Customer: replied 1 year ago.
What about the way things have been orchestrated up until now?

as mentioned telling you not to apply before you have even been considered for this role is not how it should have happened. But that still only leaves your options as: accept the new job and keep working there, reject it and go for redundancy, or resign and claim constructive dismissal (the most difficult of all as it is a hard claim to win)

Customer: replied 1 year ago.
Thanks Ben. That makes things clearer. Much appreciate your help

No worries, all the best