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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50183
Experience:  Qualified Solicitor
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I am hoping you can provide some guidance to me - I have been

Customer Question

I am hoping you can provide some guidance to me - I have been on maternity leave since November 2011. I was due to return to work in September however my baby had to have heart surgery and was critically ill for many weeks. Thankfully she pulled through however I then had to delay my return to work and take 2 months off sick. My employer was great during this time and agreed that I could take holidays for the rest of the year and return to work on the 9th January. Two weeks after I went on maternity leave the office I worked in closed. At the time I was doing a dual role as a financial adviser 3 days a week and a PA 2 days. It had been agreed before I left that I would return as an adviser given that this was my main job at the time and I was returning part time (returning as a PA would have been deemed be a demotion). I was assured at the time that my job as a financial adviser was completely safe and that all of my colleagues would work from home and report to our other office. I have had several conversations with my manager over the last year and during these conversations and at my return to work meeting I had in May (before my daughter fell ill) it was confirmed that everything was going well and that my job was safe. I had also been informed by friends at work that my return as an adviser was discussed at meetings and I was on the budget for 2013. I then received a phone call out of the blue a week ago to say that I have to go through a consultation process due to my original office closing and that due to budget constraints they cannot offer me an advisers role. They are offering me a PA role that would be office based (or redundancy)!! This call is 3 weeks before I am due to return to work and my manager knows that as I have a baby and will be returning part time that I will not accept this role given the office is a 100 mile round trip from my home. I feel that I am being treated very unfairly given that I specifically asked about redundancy at my return to work meeting in May and was told this was not an option! All of my colleagues have been retained and are happily working from home with one of them also part time. I believe that had I returned to work before now then I would have my advisers job, either that or I have been lied to all year..... If I had been given notice I could have been made redundant earlier while taking my year off and been looking for a new position rather than be told 3 weeks before I am due back that I am likely to be looking for a new job. Any comments you have regarding my legal position would be appreciated. I have only been with the company 3 years so will be entitled to little redundancy payment. Regards.
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello and thank you for your question, which I will be happy to assist you with. So just to clarify, is your original/contractual job still available?
Customer: replied 5 years ago.

Hi Ben, this is where it is difficult due to me doing a dual role beforehand.


The role I did 2 days a week as a PA is the job being made available to me, so it technically is my original job. However this was not my main job as I was predominantely an adviser and was due to move to a full time advisers role had i not been going on maternity leave. It was the advisers role that I was clearly told I would be returning to up until last week.


Expert:  Ben Jones replied 5 years ago.
Is there any suitable alternative positions available that would be happy to take instead or would you rather opt for redundancy in the circumstances?
Customer: replied 5 years ago.
Hi Ben, no there are no positions I would accept as the advisers role is the only home based job. Any other position would be in the 'new' office that is 50 miles from my home so to long and far for me to justify! My employer is aware that I would need to opt for redundancy as I had mentioned originally when our office closed that I could not commute everyday and I had commented at my return to work meeting that it had taken me an hour and 40 mins to get to the office for that meeting and that was not in rush hour. That is why I feel they are treating me badly as no proper reason has been given for my role no longer being available and i am being offered a job they know I will not accept after a year of false promises.
Also I have been studying for my adviser exams as required By our regulators to ensure I remain qualified for my job. I have spent over 100 hours since my meeting in may studying during my maternity leave as discussed with my manager - for a job I am now not going to do, i changed my car with this job in mind and converted my spare room into a study all following conversations we had- so i feel they have been morally unfair to me as well given i have spent time away from my baby and used a lot of my personal time and energy preparing for a job i now dont have, unsure if the law is concerned with this.
Expert:  Ben Jones replied 5 years ago.
I understand that morally they may not have acted correctly in relation to the studies but unfortunately that will not really be a legal matter because immoral acts are not always illegal.

Nevertheless, you will have rights in relation to the fact that your usual job appears to be no longer available because it is likely that this will be a redundancy situation.

The Employment Rights Act 1996 defines a redundancy situation as falling within one of the following circumstances:

1. Business closure – where the whole of the employer’s business is closed
2. Workplace closure – closure or relocation of one or more sites
3. Diminished requirement for employees to carry out work of a particular kind.

Whilst the first two reasons are self-explanatory, it is the third reason that will be used most commonly and also the one that is most likely to apply here.

Examples of when there is a diminishing responsibility to do work of a particular kind are:
• There is the same amount of a particular kind of work but fewer employees are needed to do it. This would generally be seen as the "classic" situation in which the employer decides to make better use of its resources. This will also include consolidating some of its jobs (e.g. spreading out the work that is affected amongst existing employees).
• There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
• There is less work of a particular kind, but the same number of employees are required overall.

So if your job is no longer there and less employees are required to do it then it is likely to be a redundancy situation. If that is the case the employer would be expected to try and offer you suitable alternative employment to avoid making you redundant. However, this has to be something that is suitable and if there is nothing that you consider suitable then you do not have to accept it and can request that you are made redundant instead.

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