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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61264
Experience:  Qualified Solicitor
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I am in field based sales role, and I am also a Carer to my

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I am in field based sales role, and I am also a Carer to my 2 disabled sons.
This is not a new situation and the company have always accommodated these demands in terms of school drop off, and transport to support services etc.. None of this has ever impacted on my performance at work or ability to do the job. As part of a restructure I am being allocated a geography that involves significant travelling and will reduce my ability to fulfil my Carer responsibilities. Is this grounds for constructive dismissal or any other course of action?
JA: Was the forced resignation discussed with a manager or HR? Or with a lawyer?
Customer: Not yet although I have advised HR and the manager that the current geography is unworkable for me due to the circumstance
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Employees
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I don’t think so

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

How long have you worked for this employer?

Customer: replied 16 days ago.
Hello. Almost 10 years (Mar 2020)

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. The first thing to note is that the employer does not have to automatically consider your personal circumstances in terms of care when they allocate your new work areas. You can certainly consider making a formal flexible working request to try and deal with these effects, but there is no guarantee it would be approved.

The right to make a flexible working request applies to any employee who has been employed by the employer for at least 26 weeks and is limited to one request in any 12-month period. Examples of the changes that can be applied for in a flexible working request include changes to working hours, times and work location.

The formal way to apply is by completing the following application form:

https://www.gov.uk/government/publications/the-right-to-request-flexible-working-form

Once an employer receives a formal request they must deal with it in a reasonable manner, ideally meeting with the employee to discuss it and, if rejected, communicate their decision within 3 months of the date the initial request was submitted. When rejecting the request, the employer is only able to do so by relying on any of the following grounds:

{C}· Planned structural changes

{C}· The burden of additional costs

{C}· A detrimental impact on quality

{C}· The inability to recruit additional staff

{C}· A detrimental impact on performance

{C}· The inability to reorganise work among existing staff

{C}· A detrimental effect on ability to meet customer demand

{C}· Lack of work during the periods the employee proposes to work

Ideally, the employer should also try and explain their decision in writing, such as providing information on why they believe the selected reason for rejection is relevant and they have relied on it.

It is important to note that when selecting the ground for refusal the legal test is mainly a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged as incorrect.

An appeal can be submitted once the decision is communicated. If the appeal is rejected then the only option left is to make a claim in the employment tribunal. A claim can only be made on one or more of the following grounds:

{C}· The employer failed to hold a meeting, notify their decision within 3 months or offer a right of appeal

{C}· The reason for refusal was not for one of the allowed reasons

{C}· The rejection was based on incorrect facts

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.

Does this answer your query?

Customer: replied 16 days ago.
Thank you this is really helpful.
To confirm my only option is to request a flexible working arrangement, which my employer on valid grounds can refuse?
And If I continue working in this newly structured role, and am unable to perform or achieve targets will any of the territory / geographical changes imposed on me be taken into consideration?
Would I be correct to say that ultimately I have to accept the role (apart from the flexible working request)?

If the nature of the job is that your field may change, then the employer can do this even if it does not make it convenient with your private life. That is where the flexi request would come in and you can follow the formal procedure I explained. If the request is properly rejected then it is a case of either accepting the new position or resigning. If you resigned you do have the option of a claim for constructive dismissal but to be honest it may not be an easy one in the circumstances.

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