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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49816
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi there I was part of a group of 20 managers one year ago.

Customer Question

Hi there

I was part of a group of 20 managers one year ago. My employer wanted to reduce this number, so an early retirement/voluntary severeance package was offered in October 2012 with a view to leaving employment in March 2013. Only those who qualified for ER accepted the offer which left six of us. When we were offered VS/ER last year we were told if we didn't take it, we would remain and undertake very similar duties. From January to March we worked on arevised job profile that could be sustained bgiven the reduction in numbers. This was agreed by directorate and published in April 2013. We started our modified role in April this year, only to have been told twice since then that our position in the new structure isn't effective and that our employer will be "creating a role to try to retain us". We are now being told that our current role will be broken up and split with three people moving to a position in a different department, and three people having a completely different job within our department. What if don't find any of these options attractive? Do I have any rights? Do I have the right to now ask for an ER as I am now of age to qualify? I have worked for this emploer for thirty-two years.
Submitted: 4 years ago.
Category: Law
Expert:  Jo C. replied 4 years ago.

Thank you for your question . My name is Jo and I will try to help with this.

What are you hoping to gain ultimately?
Customer: replied 4 years ago.

Ultimately, I am hoping to be offered ER or redundancy.

Expert:  Ben Jones replied 4 years ago.
Hello, my colleague has asked me to assist with your query as it is more my area of law. What is happening at present is that the employer is still going through a potential 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 is what will most likely be the case.

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.

When a redundancy situation arises, an employer has a duty to consider and offer the affected employees any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in employment rather than make them redundant.

If an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.

If the offer is considered unsuitable and the employee refuses it, they will still keep their entitlement to redundancy pay. However, if an offer of SAE has been made and the employee unreasonably refuses it, they would lose their entitlement to redundancy pay.

The factors that would usually make an offer unsuitable or a refusal reasonable are as follows:
• Job content and status – e.g. drop in status or level, substantial differences in duties, etc.;
• Pay and other benefits – e.g. significant drop in earnings, including basic pay, bonuses, overtime, sick pay, holiday entitlement, etc.;
• Working hours – e.g. change in shift pattern, removal of overtime, extension/reduction of working hours;
• Change of workplace – e.g. if a place of work changes and the employee’s personal circumstances make it unreasonable for them to travel to their new place of work.
• Job prospects – e.g. going from permanent to temporary work, changing to being self-employed or being employed on a fixed-term contract.

If the employer makes an offer of alternative employment, where the terms and conditions differ from their current ones, the employee has the right to a 4-week trial period in that job, which can be extended by mutual consent. If during or immediately after the trial period they decide against taking the job then they should tell their employer straight away. This will not affect their employment rights, including their right to receive statutory redundancy pay.

So if you believe that the newly-offered position is not suitable you have the right to reject it and opt for redundancy instead. Our employer cannot refuse to make you redundant if you should normally be made redundant in the situation, just because you are due to take your pension. Their refusal to do so and leaving you in a job that is not suitable can prompt you to raise a grievance first and then consider resigning and claiming constructive dismissal in the employment tribunal.

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.

Thanks Ben. When I was offered redundancy last year, it was with a view that our role would be "modified" to account for less people underaking the same workload as twenty within the new structure. However, my employer has now said that this new structure "isn't working" and that we will be offered other posts. Is there anywhere that states that I may have the right to request redundancy given that the decision I made last year was based on staying in, basically, the same job? Also, who would decide whether a new post offered has "substantial differences in duties" or not?

Expert:  Ben Jones replied 4 years ago.
Claiming redundancy for that reason alone will be a weak argument so the main issue is whether there is currently a redundancy situation and if a suitable position has been offered. the factors taken into account are as listed in my original answer - it is a combination of subjective and objective criteria but there will be a slant towards the subjective side because you have to decide if overall it is something that you consider suitable