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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 54423
Experience:  Qualified Solicitor
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I have managed a sales role nationally for 5 years, due to

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I have managed a sales role nationally for 5 years, due to sales not achieving budget my job role has been restructured to a east/west split of accountability with a colleague who has been promoted to the new equivalent role. My package did not change during this period and I have kept my salary after the changes. I was never offered a redundancy package and I was expected to make a decision within 7 days is this legal

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

When did the change occur?

Customer: replied 1 year ago.
I carried out a presentation to our CEO on June 15th with regards ***** ***** action plan on sales recovery for 2nd half of 2017. A update meeting was scheduled for June 21st for a follow up meeting with my line manager, but when I got there the HR director was also present. The scheduled meeting turned into a "This is a proposed restructure which we would like to implement which has a bearing on you and your job role " my national sales directors role was being split into 2 and I was offered a eastern regional sales directors role with no loss of salary or package. I declined the offer of making a decision there and then and asked about my role being made redundant and was told at that time redundancy was not on the table as an offer
I was asked for an answer during this meeting which I declined.
I had 2 subsequent calls regarding this on June 22nd & 23rd and I again asked the question about a redundancy package and was told quite categorically this at that time was not an option. I therefore agreed to agree to the changes as I could not afford to be out of work and the new role commenced on July 1st was communicated to the business on June 27th.

Thank you. Whilst the abolition of your job role could have potentially triggered a redundancy situation, the employer has basically offered you what they think is a suitable alternative position in order to keep you employed and avoid the need for redundancy. This is quite normal and in fact it is a legal duty on their part. So as long as the offer is one of a suitable alternative position they can avoid making you redundant. What makes an offer suitable is very much a question of fact and will depend on things like pay, location, duties, etc. If your pay remained the same and you are still doing very similar work to what you did before then it can be considered suitable. I understand that some aspects/areas would have been removed but on the whole the role would be relatively similar in terms of tasks, etc.

In any event the only way to challenge this, apart from an internal grievance, is to resign and claim constructive dismissal, which can be rather risky here. However, it is there should you need it.

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 and how it can apply here. 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

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Thank you. As mentioned, this 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. The conduct relied on could be a serious single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

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.