My colleague and I currently work in a role that the company want to alter the pay band and role type. The role is currently hourly paid with shift premiums. The company wish to change it to a salaried position working office hours. The actual job is virtually the same, the job description maps over almost 100%. We have met with our Line Manager and the company HR rep to discuss being transferred over to the new jobs our being "closed listed" which means being interviewed before the position is thrown open to the rest of the company. We have been informed that the new position is being advertised on the "open list" as we have not been "identified" with the new post. The usual policy is that you are "identified" if you carry out 60% of the role, as we map to the new job 100% we are mystified by this decision. My colleague and I have now been displaced and will have to apply for the new positions our find alternative positions in the Company. Our Line Manager has also said she will "help us find new positions" which sounds somewhat ominous.Our line Manager is very vague and cannot verbally describe the difference between the 2 jobs with any conviction. The HR Rep stated that the would be a change in "ethos and Philosophy " but would not eloborate further. The job discription for the new and existing post are very similar, this has not been refuted by the Line Manager.We have carried out the job for 6 years with no Performance or discipline issues, in fact we have had very little feedback or guidance from successive Line Managers. Can the company insist that we are displaced or do we have the right to claim that it is our job now and would be under the terms and conditions of the new position? If we apply for for the new positions and are not successful would we have a case for wrongful dismissal if we ultimately had to leave the company? 2 Jobs are available so my colleague and I are not competing for over a single job.
Province/Country relating to question: UK
Spoken to my Trade Union.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know whether you mean constructive dismissal? So you felt forced to resign
If we are forced to resign this I think is constructive dismissal? If after the displacement period we were made redunandant would this mean wrongful dismissal?
Hello again. The first issue is to identify what the employer is actually doing, the reasons behind the proposed changes and establish whether this is a potential redundancy situation or simply a change to your terms and conditions.
Examples of when a redundancy could occur is if there is a diminishing responsibility to do work of a particular kin, such as:
If one of the above applies, then this is a potential redundancy situation. The employer would then have a duty to offer you any suitable alternative employment that is available and this may certainly include the newly created positions.
The other alternative is that this is simply a change to your existing terms and conditions. There are several ways in which an employer may try and introduce changes to an employee’s contract of employment:
1. By receiving the employee’s express approval to the changes
2. By forcefully introducing the changes (called 'unilateral change of contract').
3. By giving the employee notice to terminate their employment and then offer them immediate re-engagement on the new terms.
If the employee agrees to the changes then that would usually put an end to the matter.
If the changes are introduced forcefully then the following options are open to the employee:
1. Start working on the new terms but making it clear to the employer (preferably in writing) that they are working ‘under protest’. This means that the employee does not agree with the changes but is only working them because they are forced to. In the meantime try and resolve the issue either by informal discussions or by raising a formal grievance. At the same time, the employee can bring in a claim for breach of contract in the civil courts or the employment tribunal, but usually that is only possible if they have or are going to suffer financial losses as a result.
2. If the changes amount to a fundamental breach of contract (i.e. a change that affects at least one of the key contractual terms, such as pay, duties, place of work, etc.) the employee may wish to consider taking the final step of resigning and claiming constructive dismissal. The resignation must be done without undue delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to the employee having at least 1 year’s continuous service.
3. Finally, if the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can justify the dismissal and the changes if they had a sound business reason for dismissing an employee who refuses to accept the variation in terms. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, the employee can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the need to have 1 year’s continuous would apply.
Also it is worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to any term of the employee’s contract. As such clauses purport to give the employer carte blanche to change any term of the employment relationship, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and in the spirit of the mutual trust and confidence relationship it enjoys with its employees.
Finally, if the changes are introduced and you have not been offered a job, consider raising a grievance first. Try not to resign if possible and let your employer terminate your employment. That is because by doing so, you may claim unfair dismissal, which is generally an easier claim to win than constructive dismissal (which you can make when you resign). However, if resignation is the only option, then of course do so as necessary
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