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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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My company is re-structuring the majority of existing teams

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My company is re-structuring the majority of existing teams into new roles. There has been no mention of redundancy, as the restructuring seems to be driven by a desire to cut costs (i.e. reduce the pay of the new role in real terms). We have all been invited to apply for the new jobs. But in my opinion, though the job title has changed, it is essentially the same role re-branded (I'm a financial complaints handler).
For obvious reasons, my experience fit the new job spec perfectly and under normal circumstances I would expect my application to be successful. But I'm concerned about the potential drop in pay. And there is also the suggestion of having to work shifts, which I don't currently do and wouldn't fit in with my commute and routine.
Everybody has been told by senior management that if they don't apply for the new roles they will be moved to more 'admin support' based roles - albeit on the same salary. Several of us are in this position; I understand the need for change, but it seems counter productive to pay me more money for performing a less demanding role. And despite what the management say, I can't help but get the feeling that this cost cutting exercise will inevitably result in redundancies.
If I am right about future redundancies, I wonder whether the policy might subsequently turn out to be selecting those who have refused to apply for the new roles first - even though we are perfectly qualified to do the role but were simply unable to accept having our employment contracts unilaterally varied to our detriment.
Can the company legally insist on me applying for a re-branded version of my existing job, when as yet there is not even talk of redundancy? The core role and objectives of both jobs are essentially the same. And if I subsequently find out that people are being made redundant, selecting those who refused to apply for the new roles first feels like a form of discrimination. Would I be reasonable in saying this?
Any advice would be very gratefully received!

Hello how long have you been there for?

Customer: replied 1 year ago.

Hi Ben.

I've been there for seven and a half years.

Thank you. First of all to dispel any thoughts on dis crimination, that would only occur if you have been treated detrimentally on grounds of a protected characteristic, and there is only a limited number of them. These include things like age, gender, race, religion, disability, etc. So being selected for redundancy just because you were not one of the people applying for the new roles would not be discrimination. It can however amount to an unfair redundancy procedure. Whilst the employer chooses what criteria to base their redundancy selection on, they must ensure it is fair and reasonable and that it is based on objective criteria. Whilst they could make those who are unsuccessful with the newly created jobs redundant, this should be an exercise they apply now rather than keep it in mind for the future. In other words, if someone does not apply for the new job now, then this should be an issue that takes effect now, rather than something they use against them in possible future redundancies.

In terms of the proposed changes, restructure or not it is still a change to your current contracts. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:

· Receiving the employee’s express consent to the changes.

· Forcefully introducing the changes (called 'unilateral change of contract').

· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.

If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

This is your basic legal position. I have more detailed advice for you in terms of the option of constructive dismissal and how it can apply 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 other Employment Law Specialists are ready to help you

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,

Sorry for the delayed response! It's been one of those days!

I hope I'm still able to clarify a couple of points.

For the avoidance of doubt, the new roles are only being offered under new employment contracts. That sounds a bit like the scenario which you referred to of getting the employee's express consent to any proposed changes. In my opinion, this is clearly an attempt to prevent any later suggestion of unfair or constructive dismissal.

Assuming I was minded to apply for the role, and was successful, could I then argue that the 'core' job profile and objectives are effectively the same as what I do now? And therefore any attempt to impose new contract terms, both against my wishes and to my detriment, would amount to unfair dismissal? My obvious concern here is that if I feel I have no option but to sign the new contract and declare that I'm working under protest, any attempt to raise a grievance or mediate a solution informally will not only prove futile, but potentially also remove any legal protection which I might otherwise have.

Alternatively, if I refuse to apply for one of the new roles, would I have grounds to argue constructive dismissal if I said the admin support job I was then given completely changed the nature of my existing duties? I say this because I currently work in a complex casework team. And absent of applying for the new role, or being unsuccessful if I try, there's seemingly no other choice but to take what's then being offered.

Many thanks, ***** *****

Hello, there will only be consent if you actually agree to taking on these new contracts or imply your acceptance by starting to work in the post and not challenge the new terms. Also constructive dismissal occurs when you accept a breach of contract and resign in response to that, so you would need to accept the new contract then resign straight away because of the position you were placed in. So it may be best if you accept the new role, state it is done under protest, raise the grievance to try and resolve this and if that is rejected, resign and claim constructive dismissal without undue delay.