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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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Hi I am being taken for gross misconduct by an NHS Board

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Hi
I am being taken for gross misconduct by an NHS Board because I have refused to follow instructions. However, they changed my job description last year without my agreement and without partnership involvement - the changes were enforced by the CE who said they were non negotiable. I have been advised by CAB and by ACAS that the Board has failed to follow procedure. The resulting pressure by management to accept the changes led to me becoming ill with stress and a failing immune system. I have been supported by Occupational Health. The Board have ignored their advice. I have been off sick for 6 months with stress but have been trying to return. I was placed on redeployment register by the HR Director but she has reneged on that agreement. When I attempted to return to work I was told it must be to my original job but with the enforced changes in place, none of which are reflected in my job description. They have changed my line manager from a Director to a grade 6 administrator who prioritises my work load when it is explicit in my jd that I do that. My role has basically been downgraded and HR told me that they will be making the PA roles generic rather than specialised in the future. I know that these steps will lead to a down grade. I have worked there for 12 years. Because I am refusing to return to my job with the enforced changes and have asked for redeployment as agreed months ago, they are now disciplining me witha view to dismissal (stated in the letter I received).

Any advice would be greatly received. The details I have given are in a nutshell and I hope I haven't left anything significant out.
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what your specific question is.
Customer: I would like to know if the employer is right to take me for gross misconduct for not agreeing to the changes to my job description by stating I am not following instructions. The changes are still in dispute but they keep ignoring the fact that I have not agreed to them. IU agreed to redeployment to enable the situation to be resolved but after agreeing to that they have now reneged on that as a solution and forcing me to return to my original job with the changes enforced, which is effectively a demotion and we understand from HR that with the changes in place they will change our JDs further and down grade out pay in the future. I raised a grievance but it wasn't upheld and they refused to hear the bullying and stress aspect of the grievance after I suffered ill health from the behaviour of management. Thank you.
Expert:  Ben Jones replied 1 year ago.
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Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. There are several ways in which an employer may try and make changes to an employee’s contract of employment. These are:

1. By receiving the employee’s express consent.
2. By forcefully introducing the changes (called 'unilateral change of contract').
3. By giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the changes.

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 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 feel they are forced to. In the meantime they should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes are serious enough (e.g. a change to pay, duties, place of work, etc.) the employee may wish to consider 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 2 years' 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 requirement to have 2 years' continuous would apply.

Instead of the constructive dismissal route, you may actually wish to consider the unfair dismissal one. This is when your employer dismisses you instead of you resigning. It is generally considered an 'easier' claim because it would be down to the employer to show that they had a fair reason to dismiss you, instead of you justifying that you had a valid reason to leave.

I 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
Ben Jones, Solicitor
Satisfied Customers: 38929
Experience: Expert in UK Employment Law
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Ben Jones
Ben Jones
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Expert in UK Employment Law