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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50209
Experience:  Qualified Employment Solicitor
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I applied internally for a promotion. After interview the

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I applied internally for a promotion. After interview the top scoring candidate was offered the position. However this candidate was on a secondment when he applied for the job. My employer has given this candidate the promotion but are still letting him do his secondment role and not the roles and responsibilities as laid out in the promotion application. Can they legally do this. I an others also passed the interview board and are willing and able to do the job and start immediately. Surely the person who has been promoted as off 30/08/16 should have been asked to choose whether he continued with the secondment or took the promotion. I look forward to your advise

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

Do you know whether the promoted employee will be commencing his new tasks shortly or will they not be doing them at all?

Customer: replied 1 year ago.
Communication is lacking is this case. he has been doing this secondment from approximately june to November for this past 3-4yrs and during this time has temporarily been promoted ( grade title HSO). During the winter months whilst at that stage he has worked in my office/ Laboratory he has not done any duties relating to the normal day to day work but continued to concentrate on the work involved in the secondment. I assume he will return here around November but it remains to be seen what work he will actually be doing. The Permanent post (also grade HSO) which he has now got and not doing came about by our boss retiring 3 years ago. Since then without any assistance from my line management I have been doing the role unofficially since then. Last year in August the post was advertised as temporary promotion(grade HSO). This competition is decided purely on the written application. The competition stated that if more than one scored above a certain level then the temp promotion would be shared on a three month rotation. I came top in this another colleague also passed so we have been officially doing 3 months about since last sept. sorry this is long winded but I want to explain the facts as fully as possible.

No problem at all and thank you for the information; please leave it with me. I will be 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 1 year ago.
I can send you the candidate information booklet to go with the job if that will help?

Yes, any additional information will be useful. Thank you

Customer: replied 1 year ago.
Thanks Ben. Here is the booklet and the application form just for info.

Many thanks. I will get back to you at the earliest opportunity.

Many thanks for your patience. Employers have the right to choose who they employ and can make such decisions based on a wide range of factors. There could be a number of reasons why one candidate is chosen in preference to others or why someone is not given a job, even if they are generally considered to be the best or most suitable candidate. It is generally lawful for the employer to use whatever factors they feel are relevant and appropriate in the circumstances to come to that decision.

So even if the successful applicant is not immediately available to start the position, that does not mean that choosing them has broken any laws. This is a business decision for the employer to make and if they are happy to wait for them to return from secondment, even if others are ready to start immediately, then they are free to make such a decision.

The only requirement in law is that the employer’s decision is not based on discriminatory grounds. That means that it should not base its decision on factors relating to gender, race, religion, age, disability, sexual orientation, etc. If its decision is based on any of these, there will be a potential case of discrimination and the affected person can potentially take this further. However, in the absence of any discriminatory reasons, the employer will rarely be acting unlawfully and will have the general power to be selective over whom it employs, even if it this generally appears to be unfair.

I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you

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.

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Customer: replied 1 year ago.
Hi Ben, Sorry I only got reading your reply quickly yesterday and then got called to a meeting along with another colleague regarding the whole situation. Line management claim they where not told of the appointment date and that no discussion has happened regarding the candidate returning- bit strange and they realise how much bad feeling has been created. So the situation is still on going. I will leave feedback now.ThanksEl

Thanks for getting back to me. If you have any further queries do let me know