UK Employment Law
UK Employment Law Questions Answered by Verified Experts
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?
Hello Ben, I have worked there for 11 years
Ben, will you able to respond this evening or should I check again tomorrow?
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.
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?
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?
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
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.
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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