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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70820
Experience:  Qualified Employment Solicitor
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I wonder if you can help with the following: I was on full

Customer Question

Hi there,I wonder if you can help with the following:I was on full time furlough from April until around late August, beginning of September when I got moved onto part-time furlough working around 14h/week. My original contract is for 21h/week.We have had no confirmation from our employer regarding permitted hours during October despite several attempt to find out…-and now being half way through October.There has been no confirmation what will happen to our jobs once the current furlough scheme comes to an end. All employees have been asked to think about reducing hours further and there have been hints that the new furlough scheme will not be beneficial to our company.There is a lot of freelance work available in our industry which under my current contract is difficult to accept. Hence I have put myself forward for voluntary redundancy a couple of days ago to allow me to pick up work that way. This offer has not yet been accepted or declined. I have been told by my employer that they are thinking about it.I have today seen that our company is advertising a position at my current level for £15k/annum more than I am on.I feel rather stuck with regards ***** ***** my options are and whether I should resign losing any right of redundancy payment.I would be very grateful for some guidance. I have today been signed off sick by my GP as this is situation and uncertainty causing me major stress and anxiety.MANY thanks for your advice in advance and kind regards,Annette
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Yes, I have made several attempts to get clarity to no avail
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am an employee. There is no union for my industry.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I think I have put everything in my first message, thanks!
Submitted: 8 days ago.
Category: Employment Law
Expert:  Ben Jones replied 8 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 8 days ago.

How long have you worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 8 days ago.
Hi Ben, thanks for your message. I have been employed with this company since September 2017. The company was bought out by an Icelandic company in November 2018. I was advised that my employer had not changed as a result of this buy out, just the directors. Not sure that makes any difference to my situation?
Customer: replied 8 days ago.
Hi Ben, I'd prefer to discuss through chat if at all possible. It will help me re-read bits if I need to. I hope that's acceptable.
Customer: replied 8 days ago.
Forgot to say I have worked with them as a freelancer well before accepting my permanent contract with them in 2017. Again this might be irrelevant to my current situation.
Expert:  Ben Jones replied 8 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

Whilst you can put yourself forward for voluntary redundancy, that is not guaranteed to be accepted by the employer and it is also voluntary on the employer’s side – it is basically up to them to decide whether to accept it or not.

If they decline your request, you will continue in accordance with your existing terms and conditions. When it comes to furlough, you are legally and contractually entitled to expect your employer to honour your contracted hours of work, even if furloughed. In order to put you on furlough with reduced pay, the employer needs your consent to reduce or amend your existing contract and for you to accept a reduced salary. Many employees would do that to avoid being made redundant. However, if you would prefer redundancy you can always refuse to accept any change to your contract, in order to facilitate being furloughed.

If that was to happen the option to the employer are to continue allowing you to work as normal; to consider redundancy; or to force the changes through anyway and let you deal with this as you see fit.

If the latter was to happen, then you can treat this as a breach of contract and whilst you can raise a formal grievance to start, it can eventually be treated as a constructive dismissal by you.

This occurs when the following two elements are present:

- A 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. This is an implied term, of a contractual nature, which automatically exists in every employment relationship. It is there to ensure that the employer and employee treat each her fairly and reasonably. The breaches that could qualify could be a serious single one, or a series of less serious, but still relevant breaches over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

If resignation appears to be the only option going forward, it must be done in response to the alleged breach(es) (i.e. without unreasonable delay after they have occurred, so as not to give the impression that these breaches have been affirmed). Whilst not strictly required, a resignation would normally be with immediate effect and without serving any notice period. The reason is that the whole argument would be that things had become so bad that the employee cannot even continue working there a day longer. It is also advisable to resign in writing, stating the reasons for the resignation and that the whole situation 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, unless the reasons for resignation are linked to some limited exceptions, such as due to discrimination (on grounds of gender, race, religion, age, disability), or due to another protected act, like raising health and safety concerns or making other protected disclosures. 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 also worth mentioning that there is a possible alternative solution to this, which could avoid the need for legal action. That is where the employer is approached on a 'without prejudice' basis (i.e. off the record and with protection against these discussions being brought up in future legal proceedings) to try and discuss the possibility of leaving under a settlement agreement. This can be done by asking for a meeting, or it can be done in writing, via letter or email. Under a settlement 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 the Employment Tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. There is nothing to lose by approaching this subject with the employer and testing the waters on this possibility - 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.

Please follow this link to ACAS for some more general information about constructive dismissal:

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Expert:  Ben Jones replied 7 days ago.

I hope that your query has been answered to your satisfaction. I just wanted to take this opportunity to remind you that if you needed any further clarification with this query, you should not hesitate to contact me and I will be happy to help. For now, thank you for using our services.

Customer: replied 7 days ago.
Hi Ben, thanks for your detailed response and apologies for my slow reply. I'll be back in touch should I need clarification on anything. Meanwhile thanks again and kind regards, Annette
Expert:  Ben Jones replied 7 days ago.

You are most welcome and all the best