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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50147
Experience:  Qualified Employment Solicitor
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What is the criteria used to determine assimilation rights

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What is the criteria used to determine assimilation rights for a job following a re-structure - is it based on your job description or the job you are have actually been doing for the last 12 months?

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

Please can you provide some background information on your situation so that I can advise. Thank you

Customer: replied 1 year ago.
I have been employed in a Local Authority since June 29th 2015. My employer has announced a restructure at my level. I am a senior manager managing ICT and Customer Services - in the new structure there will be an Senior ICT manager and a Senior Customer Services Manager. I am the only person ringfenced for the ICT role and I am competing against one person for the Customer Services role. I asked my employer to put in writing their assimilation criteria two weeks ago they have not replied - informally in a discussion with the CEO during the informal period he stated it was to e based on 65% match with the existing job description. I am currently and have been doing a job for the last 12 months where I can evidence 80% of my time has been spent on my ICT responsibilities for various reasons. On the ring fencing I am also concerned as custom and practice for jobs at my level is interview only. The HR manager told me again informally recently that they may introduce Psychometric testing for the jobs as an additional hurdle however this will not be applied to those who have been assimilated. If you can advise if assimilation should be on current job description of job I have actually been doing that would help - also is it discriminatory to introduce new processes for ring fence candidates such as Psychometric testing that has not been applied to candidates that are being assimilated.

Many thanks for your patience. Whilst there is nothing specific in law which says what the employer should use in these circumstances, as a starting point it would be the employee’s contracted position, so whatever is in their contract. However, there may be a situation where an employee’s actual job bears no direct resemblance to what is in their contract. What a tribunal would then look at is whether their current job is on which has become their contracted position, in effect replacing their contractually defined one. This does not simply happen if they have been doing a job for a specific amount of time or at the time the restructure is happening. To be able to request that their current position is taken into account the employee must be able to argue that it has become their contracted role through ‘custom and practice’.

There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.

The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.

Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:

· On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract

· Whether the terms are always the same - large differences will make the argument they had become implied weaker

· The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied

You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal, although you are free to raise a grievance with the employer first to try and deal with this internally.

The issue here is that with less than 2 years service your rights are rather limited as the only way to challenge this would if you were dismissed and claim unfair dismissal or resign and claim constructive dismissal – both of which require 2 years service which unfortunately you do not have. So you can raise the argument but not legally challenge it.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 stars - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Hi thanks what about the change in selection process for the ring fenced interview introducing testing?

Again this would not be challengeable here as it is only a potential unfair procedure and the fairness is only dealt with under one of the two claims I mentioned which you cannot make. To be honest in the end the employer can change their selection procedure as they see fit as long as all of those affected are treated the same, for example those at risk are tested the same, or those ring fenced tested all the same. However, the at risk group and the ring fenced group do not have to be tested in the same way. Hope this clarifies?

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 1 year ago.
One final question before I rate you - can I sue my employer through a court rather than employment tribunal for unfair dismissal? Or does 2 year rule mean I have no employment rights for unfair or constructive dismisaal claims?

Hi there, unfair/constructive dismissal claims can only be pursued in the employment tribunal and you need 2 years’s service to be able to claim. You cannot make these claims in the county court as it has no jurisdiction to hear them. In terms of employment claims in the county court you can only make claims for breach of contract or discrimination and these are not relevant here I’m afraid. Hope this clarifies?

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