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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50147
Experience:  Qualified Employment Solicitor
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I have been with my employer for 11 years. The last two

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I have been with my employer for 11 years. The last two years I have been working in Compliance but they job description has never been changed as I have been trying to decide if I want the new. I told my boss I did and he said it was basically my job. Yesterday they advertised the role and did not even tell me that they were going to. Do I have a right to complain about this.

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

Does this mean you have to apply for the new role to officially get it?

Customer: replied 6 months ago.
I don’t know. My boss mentioned that they may have to advertise it a week or so ago in case someone else was interested, even those I am the only one with any experience, but hasn’t spoken to me about it since.
Customer: replied 5 months ago.
Any chance of an answer? If not I would like my money back please

Hi there, sorry I was offline by the time you had replied to me and have only just returned (we are not on full time during weekends unfortunately).

Can I just check how long after being told the job was yours did the advertise it?

Customer: replied 5 months ago.
Apologies was having a bad day. About two weeks.

No problem at all and thanks for getting back to me. The main issue here would be how binding the promise of the job being yours was and what were the intentions of the employer when they said that. Obviously if this was just a verbal discussion it would be harder to prove what exactly was said and what they meant by it so in that case it may be a bit more difficult to argue your case.

However, if they genuinely meant to say that the job has been promised to you and you basically had a guarantee in remaining in it, then you can potentially argue that by not giving it to you they have acted in breach of that promise, which is akin to a breach of contract. However, it is premature to argue that as advertising the job does not mean you do not have it. The employer could still be planning on retaining you in it but just advertising it to make the process look fairer. Often an employer may already have a preferred candidate in mind but they would still advertise a role to make it look fair to all other candidates and at least give them the impression that they had an equal chance of getting it.

So until you know what the outcome of this recruitment process is there may not necessarily be grounds to challenge them as they will only be in potential breach if you are removed from that role. That is when you can consider raising a formal grievance to start with and if that does not resolve matters - your only option is to resign and claim constructive dismissal in the employment tribunal.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the constructive dismissal option. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. As mentioned, if they refuse to allow you to continue in the job it 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 resigns in response to it.

Whilst the alleged breach could be a breach of a specific contractual term, it is also common for a breach to occur when the implied term of trust and confidence has been broken.

Before constructive dismissal is contemplated, it is recommended that a formal grievance is raised in order to officially bring the concerns to the employer's attention and give them an opportunity to try and resolve them.

If resignation appears to be the only option going forward, it must be done in response to the alleged breaches (i.e. without unreasonable delay after they have occurred). Whilst not legally required, a resignation would normally be with immediate effect and without serving any notice period. It is also 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 with the employer. There is a time limit of 3 months from the date of termination of employment to submit a claim in the employment tribunal.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.