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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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Please could you clarify what defines being "at risk" for redundancy?

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Please could you clarify what defines being "at risk" for redundancy? My employer recently restructured my department and as part of this I was given the opportunity to apply for a new role which was on the same pay etc (my original position does not exist in the new structure). I had to go through a selection process, but unfortunately was not successful. However, a few days after this, I was given the opportunity to apply for a lower graded role and was successful in this second round of selection. I was very unhappy with the situation due to it representing a significant pay cut, but accepted the second position thinking it would give me some time to reflect and look for another job. I believed I was entitled to a statutory trial period of 4 weeks from the start date of the new lower graded role, but my employer has stated that I was never formally put at risk of redundancy, hence I am not entitled to a trial period or any right to claim for redundancy if I now hand my notice in. However, they do acknowledge that the lower graded position I accepted does not consistute a "suitable alternative" due to the pay difference. I have tried to raise an internal grievance, but my employer has declined to progress it on the basis that my challenge is against their policy. Thoughts please?
Submitted: 10 months ago.
Category: UK Employment Law
Expert:  Ben Jones replied 10 months ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Hello Ben, I have worked there for 11 years

Customer:

Ben, will you able to respond this evening or should I check again tomorrow?

Ben Jones :

Hi sorry I was delayed on my way home - thank you for your patience. Being placed 'at risk' of redundancy means that your original position is potentially going to be made redundant and you are therefore at risk of being made redundant as a result. It is only called 'at risk' because the redundancy has not yet been confirmed. The employer is expected to go through a consultation process to discuss the redundancy, the reasons behind it, what could be done to avoid it, etc. In addition, they need to offer you any suitable alternative employment (SAE) that may exist.


 


The trial period applies if "the capacity and place in which the employee is employed, and the other terms and conditions of his employment, differ (wholly or in part)" from the terms of their previous employment. In these circumstances the alternative employment would be offered on different terms and should be offered subject to a four-week trial period (section 138(2) and (3), Employment Rights Act 1996).


 


The case of Elliot v Richard Stump confirmed that the trial period takes effect automatically if the above conditions are satisfied. In fact in that case the court said that the employee had reasonably refused an offer of alternative employment when their employer refused to allow them a trial period.


 


So if the terms of the new job differed from the old one, you would have been automatically given a 4-week trial period in the job if you had decided to start working in it and you could reject it if you believe it is unsuitable.

Customer:

Thanks Ben, that seems really clear. My employer did put the new structure through consultation, so would I be correct in thinking that I was at "at risk" from the point this was finalised and it was clear that my old role did not exist in the new structure?

Ben Jones, Solicitor
Satisfied Customers: 38346
Experience: Expert in UK Employment Law
Ben Jones and 2 other UK Employment Law Specialists are ready to help you
Customer: replied 10 months ago.

Hi Ben


 


I have put your points to the HR person who was involved with the restructure and his response is as follows -


I think that the issue turns upon whether XXXX’s policy of running a restructuring process through a ring-fenced recruitment exercise prior to identifying any individuals as being “at risk” complies with the statute. Certainly it has been established policy for some time, has been agreed with the unions, and is a mechanism which many organisations around the country and across all sectors make use of. Authorities (case law) from the EAT etc., tends to be circulated by various legal firms and professional bodies quite regularly and I am not aware of a successful challenge to it.




t appears they have a different interpretation of what constitutes "at risk" of redundancy. Your thoughts?

Expert:  Ben Jones replied 10 months ago.
I am not quite sure what they are getting at here but being placed 'at risk' is a rather simple term which I think is being unnecessary complicated. 'At risk' simply means you may be made redundant and that is it. As long as you are still possibly going to be made redundant and until you have been given another suitable job to do you remain at risk.
Customer: replied 10 months ago.

Thanks Ben


 


Thinking it through, after the first round of recruitment I had a very simple choice -


 


A - apply for a lower graded job in the second recruitment round


B - Do nothing


 


In situation B, my employers own documentation about the restructure clearly states that "any employees not successful in securing a position will be considered as 'at risk' of redundancy and the redeployment procedure should be followed".


 


I feel your comments have to be correct because otherwise the employer could use such a restructure to make all sorts of changes to an employees T&Cs and offer no trial period, with the employees apparent options being to simply accept this, or go into the redeployment procedure and possible redundancy.


 


I have also spoken to the ACAS helpline and their comments bear out what you have stated. Unfortunately my employer doesn't seem willing to reconsider their position, so it seem I will have to fill out an ET1 to move this on :-(


 


Many thanks for your help

Customer: replied 10 months ago.

Additional to my comment above -


 


One of my colleagues was in exactly the same position after the first round of recruitment. However, she then declined to apply for a lower graded role (option B above).


 


Interestingly, my employer then offered her a trial period in one of the lower graded posts which had not filled at the end of the second recruitment round. This offer included maintaining her pay on the old grade for the duration of the trial period.


 


 

Expert:  Ben Jones replied 10 months ago.
The unfortunate position is that even if you know you are right and have the facts to prove it and back it up with case or legislation, the employer may still be stubborn about it and refuse to acknowledge your rights. In such circumstances you can initially pursue this through the internal grievance procedure, however if that fails then you may have to go legal and involve the ET - the initiation of a claims process could prompt the employer to reconsider their position, failing that you will hopefully succeed at tribunal and get what you are entitled to.
Ben Jones, Solicitor
Satisfied Customers: 38346
Experience: Expert in UK Employment Law
Ben Jones and 2 other UK Employment Law Specialists are ready to help you
Customer: replied 10 months ago.

I have tried to pursue this through an internal grievance, but they seem very reluctant to progress this and even initially declined to consider the matter, stating that it wasn't appropriate for me to use the grievance process to challenge a policy. The grievance is still outstanding but very little seems to have happened so far. I don't hold out much hope on the grievance, so it seems I will have to start an ET claim.


 


 


Thanks again for your help.

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