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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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My company is restructuring, I have been told I am at risk.

Customer Question

My company is restructuring, I have been told I am at risk. My question is, I disagree with their idea of 'suitable alternative' , so I am seeking redundancy. Do I have a case for redundancy based on the following please
1)18 Salaried and management positions are at risk, there are expected to be 55 redundancies across the whole site (roles not specified). I will be expected to be an hourly paid Supervisor, I am currently a salaried Manager. This means I will now stand in a clocking out queue with the people I am expected to be supervising, thus affecting my status, dignity, credibility etc.
2)my proposed new salary will be reduced from £34,000 to the equivalent to £25 - £30,000 max. (likely to be nearer £25,000). this will leave me in debt within months.
3)Change in hours from 06:00 - 16:10 over 4 out of 6 days incl Saturdays, to 06:00 - 18:00 over 3 out of 5 days excluding Saturdays(4 days every 4th week). This is not possible for me, I have to pick up my 4 children from childcare by 6:00pm (20 miles from my place of work)
4)my pension contributions will change from 10% company + 5% personal contributions, to 5% + 5%.
5)Management positions include a death in service benefit of 4 x annual salary, this will be removed as it will be an hourly paid role. both 4 & 5 add up to significant removal of benefits to me.
6)I currently benefit from 6 months paid sickness per year (I have only ever had about 3 weeks in 15 years), as an hourly paid employee this will revert to waiting 3 days for any payment etc.
My feelings are I would be better off to take £22,000 redundancy and find another job. this would buy me 11 months to do so, if lucky enough to do so quickly I can then use some of the payout to reduce my outgoings long term so afford to take a lower paid job anyway. I have qualifications and am confident of finding work that pays £25,000+ fairly quickly, but have no intention of leaving without redundancy. I am 50 and have been with the company for 15 years, gradually working my way up the Management/Salary ladder. We have a new senior Management team, who I guess are not going to be taking pay cuts, and as a team, we are treated terribly now, made to start at 04:30am (not every day) without pay (we are sometimes allowed to leave early in lieu) - made to stay late on a Saturday evening to complete ridiculous production schedules. The general feeling and gossip is that the senior team is trying to make people quit in order to save making redundancies - some people have in fact already left.
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 how long you have worked there in this position.
JACUSTOMER-90y712np- : For Ben Jones. I have been with the company (Bernard Matthews, food manufacturing in Norfolk) for 16 years, I have been in a Management position for about 11 of those years. My current title is 'Enhanced Line Manager' which was introduced last year under a restructure to bring us in line with our other site in Holton in suffolk. I was before that, 'Deputy Production Manager'. The Holton site is NOT undergoing the same restructuring as us this time.
JACUSTOMER-90y712np- : For Ben Jones - confirming e-mail address
JACUSTOMER-90y712np- : For Ben Jones -XXX@XXXXXX.XXX
Expert:  Ben Jones replied 1 year ago.
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Expert:  Ben Jones replied 1 year ago.
Thank you very much for your patience. When a redundancy situation arises, an employer has a duty to consider and offer the affected employees any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in employment rather than make them redundant.

If an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.

If the offer is considered unsuitable and the employee refuses it, they will still keep their entitlement to redundancy pay. However, if an offer of SAE has been made and the employee unreasonably refuses it, they would lose their entitlement to redundancy pay.

The factors that would usually make an offer unsuitable or a refusal reasonable are as follows:
• Job content and status – e.g. drop in status or level, substantial differences in duties, etc.;
• Pay and other benefits – e.g. significant drop in earnings, including basic pay, bonuses, overtime, sick pay, holiday entitlement, etc.;
• Working hours – e.g. change in shift pattern, removal of overtime, extension/reduction of working hours;
• Change of workplace – e.g. if a place of work changes and the employee’s personal circumstances make it unreasonable for them to travel to their new place of work.
• Job prospects – e.g. going from permanent to temporary work, changing to being self-employed or being employed on a fixed-term contract.

If the employer makes an offer of alternative employment, where the terms and conditions differ from their current ones, the employee has the right to a 4-week trial period in that job, which can be extended by mutual consent. If during or immediately after the trial period they decide against taking the job then they should tell their employer straight away. This will not affect their employment rights, including their right to receive statutory redundancy pay.

From what you have written there a number of factors that can certainly make the job you have been offered unsuitable and prompt you to reject it, seeking redundancy instead. You may approach the employer to advise them of that but they cannot be forced to make you redundant. If that is the case you would be looking to potentially resign and then make a claim for constructive dismissal, and seek compensation for the redundancy pay you were denied, as well as possible compensation for future loss of earnings.

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
Customer: replied 1 year ago.

For Ben Jones. Sorry for delay, I didn't receive a text informing me you had answered, I have just found your reply in my junk file! I had most of what you said already, it is the contents of the last paragraph that I need some clarification on. If I may summarise; If I am offered a position at £5000+ BELOW my current salary, this will put me in debt within a short period of months, I also believe there is a clear loss of status although the role appears similar I will be going from a salaried Management position to an hourly paid Supervisor. Is the loss in pension benefit a factor in this, likewise the death in service benefit (currently worth £136,000) is important to me as I have a young family (4 children under 11) and it offers comfort and peace of mind should the worst happen to me., and at 50 years old £136,000 life cover is cost prohibitive - especially on a salary that will eventually place me in debt anyway. I understand I can't force them to make me redundant, what I am after is a sound opinion on whether or not if I resigned, my claim for unfair dismissal would be likely to succeed, and if I chose this course, what are the 'number of factors' you refer to that I should focus on.

Expert:  Ben Jones replied 1 year ago.
Hello Andrew, everything that you have flagged up in your last response would be a relevant factor that you can bring up and use as a reason to reject the position you have been offered and ask for redundancy instead. There is no single strong factor that you need to rely on, rather you need to take the whole offer into account and place all the reasons you are relying on in one 'bundle' and use these to reject the offer.

We are not in a position to advice you of prospects of success as that is something reserved for a solicitor who has had the chance to conduct a formal case analysis, but there are certainly sufficient reasons to take this forward if necessary
Customer: replied 1 year ago.

For Ben Jones Hi, Thanks for that.A couple more questions. When you mention 'Job prospects' would this include the fact that there are unlikely to be further advancement opportunities (I have been steadily advancing over the years and intended to keep doing so) or is it exclusively the examples you give ie permanent to temporary/self employment/fixed term contract etc? If I am refused redundancy and choose to resign, how would notice periods be affected (my current contract stipulates 4 weeks both ways)? Do I resign at the end of my 30 day consultation and expect to work the 30 days, if so would it be at the new lower hourly paid rate?

Expert:  Ben Jones replied 1 year ago.
It is certainly not limited to the examples I have given, in fact there is no limit on the factors that can be considered when deciding if a job is suitable or not - the ones I have given are just the most common ones. You can either resign with immediate effect, or if you are still able to work in your current job then you may work the notice period, however you cannot be forced or expected to work in a job that is different to what is not covered in your contract and which pays less.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
Ben Jones, Solicitor
Satisfied Customers: 38309
Experience: Expert in UK Employment Law
Ben Jones and 3 other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

For Ben Jones. Have rated your answer, thank you. I suppose I will have to wait to see what I am offered formally, If I resign with immediate effect will it not affect any notice payment? My intention is to wait and see if they accept my redundancy application, or a position more in line with my current one. If they do not, is it at this point I notify them of my intentions to resign and claim unfair dismissal, and if so can I work the 4 weeks trial period they have to give me (I believe I have to notify them in writing that this is the case - can you guide me on wording and whether or not I should do it by e-mail please) then reject at the end of the 4 weeks. This gives me another 4 weeks to find an alternative while not eating into my payout too much, or because I intend to resign does that eliminate the 4 week new position trial?

Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.

For Ben Jones. Thank you. If I resign, when explaining the reasons why, do I also need to make them aware of the fact that I consider I am being constructively dismissed, and do I inform them I will be pursuing a claim accordingly. Should I resign when the consultation period closes?

Expert:  Ben Jones replied 1 year ago.
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Customer: replied 1 year ago.

For Ben Jones. Sorry, I think we're nearly there. I need to know if I should tell them I consider I am being constructively dismissed, and If I wait until the consultation is closed - or as soon as they make any final offer. If so, do I ask for the final offer in writing.

Expert:  Ben Jones replied 1 year ago.
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