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?
Hi Ben. I have worked there for 6 years since March 2007
Thank you 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.
It is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to the employee’s contract. As such clauses give the employer carte blanche to change any term, 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 this may not have actually been met here as you are basically given a demotion, which is unreasonable.
In terms of my specific question regarding the term in my contract, what do you suggest?
I do not want to claim constructive dismissal as I rely on my salary for my mortgage, bills etc.
the clause would not allow them to just implement the changes without your knowledge and consultation. So what they have done so far is most likely unfair. The issue is how you deal with it from now on because the options above are the only ones you can pursue (apart from also trying to negotiate some kind of agreed exit)
Ok. Ideally I would like to negotiate redundancy and leave. My role in conferences is no longer available and they moved me to the publication part of the business with no communication. Now the new sales director (who sits in the US) has given me a new job spec which essentially is a demotion in the role itself. It has the same job title, but the HR director said - it's of the same level. The new role does not take on board my 14 years of skills and experience. The role (regardless of the title not changing) is one that you would give to someone of 5 years if that
you may certainly argue this is a redundancy and try to negotiate an exit that way but if the employer disagrees and refuses to make you redundant then the only way to pursue this is still via a constructive dismissal claim unfortunately
And in the case of constructive dismissal, they don't need to pay you anymore - not even what is owed or my notice?
if you claim constructive dismissal then you are leaving with nothing but will then make the claim and if you are successful you will receive adequate compensation, so there is obviously a risk
I can't afford to not even get paid for a month unfortunately as I used all my savings buying my flat recently, so just only starting to build that up, but don't have a month's worth of bills event.
Looks like I will have to ask for the redundancy as the role they have presented is one of a junior level and if they say no, I have to accept the role and then look for a new job?
I just thought that legally they have to offer me redundancy as an option if there are no other roles of the sale level and in my skills set.
No they do not, an employer can refuse to acknowledge there is a redundancy situation if they do not believe this is the case. You cannot force them to make you redundant which is where the constructive dismissal option comes in and that is where your legal protection is, even if it may not be ideal in the circumstances
the conferences director told me that my role no longer exists in conferences department - is that not saying the role here is redundant?
yes it more or less is, one of the definitions of redundancy is where there is a diminished requirement for employees to carry out work of a particular kind. But the issue is that you cannot force them to make you redundant, even if there is a redundancy, they can refuse it and be difficult, expecting you to take up another job, that is the problem - to do anything about it you would have to go down the constructive dismissal route
Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?
I hope this has answered your query and 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
Oh I went to submit and it said the chat would close. I wanted to have a think last night which I did and I think you hit the nail on the head in that they will not see the role as redundant as they have merged it in to another role. However, I don't feel that my skills are transferable to this new role. I also feel like the terminology this sales director uses and his wording towards me is one of bullying. If I raise a grievance against him, could the company dismiss me if for example the grievance is unfounded? He has used stated on email "employees report in to their managers asking for approval for out of office meetings" and on another occassion "your actions potentially may need us to go back to clients and renegotiate". I feel that both of these quotes from the emails are of a demeaning and humiliating tone in front of colleagues and clients and both emails have caused me extreme distress to say the least.
I also was advised by HR that he said I was "insubordinate to him" which to me is a very strong word which could lead to him managing me out. I already feel backed in to a corner where this new role he has put to me, is one of a very junior level. I'm not sure how we can work together moving forward.
It just seems as though the law is on the side of the company, until I go down the route of constructive dismissal and if I raise a grievance, they could see fit to manage me out.
The conversation won't close and you can always come back to it. You should not be dismissed for simply raising a grievance, even if the employer does not find evidence to support it. Often a grievance may be raised due to the way someone feels about an issue which does not mean it is done maliciously, rather it would be their own perception that makes them consider there is a problem that needs resolving.
The law would not necessarily be on the employer's side - both you and the employer would have rights and they will be applied in different ways. If you are managed out and dismissed you will still have protection by potentially claiming unfair dismissal, otherwise f you have to leave, it is the constructive dismissal route. So there is always a potential claim you can make if necessary.
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