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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70214
Experience:  Qualified Solicitor
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I have been in an acting up role now within my organisation,

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Hi, I have been in an acting up role now within my organisation, NHS Digital, for over 3 years, my contract is until the end of this month where they could try and put me back into my substantive grade of band 5, I am acting up to a band 6. The info in house says that employees should not be in an acting up role for over 6 months, my actual substantive role is not available so they would have to offer me another role, also my old job is now a band 6. What are my rights for claiming either a new role at a band 6 or a redundancy payment at that grade please?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: They are discussing the situation between the manager and HR and I have not been included yet
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee and I belong to Unison
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no thats it thanks

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.

Hi there. Can I just check, why did you stay in the acting up role beyond 6 months?

Customer: replied 4 days ago.
Hi, they kept extending the role as we were needed to do the job we had been trained up to, there was nobody else who had been trained to do it

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; 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.

Customer: replied 4 days ago.
ok thanks

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. Firstly, you should argue that as the acting policy only allows 6 months maximum and yours was basically extended 5 times, it has created a precedent that this is not just an acting up placement but potentially transformed into a permanent one due to the length of time you have been in it and the extensions that have happened contrary to policy.

However, no matter what you raise with the employer about it, they do not have to agree with it and the only risk is that there is nothing definitive in law that would give you the rights you are after – it is mainly an argument based on reasonableness and fairness, but nothing specific in black and white.

Ion that case, assuming the employer does not agree with you, you may have to consider challenging them via other means, which would likely require you to resign and claim constructive dismissal against them to try and get compensation.

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 the employer 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.

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.

Ben Jones and other Law Specialists are ready to help you
Customer: replied 4 days ago.
Thanks very much for your response Ben, thoroughly appreciated.

You are most welcome