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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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MY role became essentially became redundant after my uni

Customer Question

Hi! MY role became essentially became redundant after my uni merged with another 1st August and I was TUPEd across. I was told they have a role for me to move into but after 4 months (I was initially told my new role would be ironed out within first two weeks of June this year) I am still doing ad hoc duties of a much lesser level than my grade and my career progression and the trajectory i was on has been halted, causing me much stress along with the ingoing uncertainty around what new role will be.
I requested voluntary severence recently but was turned down. My job guarantee ends 4 December and the new uni dept is expected to undergo a re-roganisation at which point I fear they can put me into any role they want. Do I have a case for pushing for redundancy or I am better off resigning and resuming my career trajectory elsewhere?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

How long did you work in the previous role?

Customer: replied 1 year ago.
Just over ten years. response to request for vol sev initially was - no, it's too high and we need you to help with post merger stuff but this was not true and then response was we have a role for you (but 4 months on despite various statements saying we will meet and iron out a role, each time at the meeting this has not transpired adding to my stress and anxiety as I have a lot into my career progression and trajectory over recent years and the 'current role' to date is tasks which take me years back and that I was delegating to others
Expert:  Ben Jones replied 1 year ago.

Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

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

Many thanks for your patience. I would not say that after the initial 4 month transition period they can put you into any role they want. If this is all as a result of the potential redundancy situation, then the employer still has a duty to try and offer you suitable alternative employment. If none exists or what you have been offered is not suitable, then you can reject it and still go down the redundancy route. So what I suggest you do is talk to the employer and tell them that the role you are currently doing is just something you treat as a transitionary position before you are either placed into a role similar to what you did before, or something which you deem a suitable alternative. If nothing of the sort can be found then make it clear that you will be expecting to be made redundant because your old job disappeared and that amounts to redundancy. Waiting another couple of months would not be a major issue so if you can hold out it may be best. Resigning now would mean that you give up the right to receive a redundancy payment, which after 10 years of service can be a reasonable amount. Of course there is nothing stopping you from asking for redundancy now but they can refuse, so the latest they should leave it until is when the reorganisation occurs and it becomes clear whether there is a suitable position for you. If they cannot find anything for you then and still refuse to make you redundant, that is when you can resign and consider a claim for constructive dismissal, seeking compensation to cover loss of earnings and what would have been your redundancy payment had you been made redundant at the time as you should have.

I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Hi, thanks for your reply. I was offered a role by the new workplace before the merger took place on 31st July but it was not suitable, and I told them this which is when they said I can sit with my line manager and we can iron out a role for me but four months later this has still not happened and I am being given tasks below my capability and status. Who gets to decide what is suitable alternative employment and how long do they have to 'iron this out' a role for me as I would rather say no to the role that was offered and request redundancy instead of 'ironing out a role' as 4 months have passed and led to nothing and I would prefer to take redundancy now and move on. My previous role covered a lot of areas which the new workplace has dedicated teams for each area and they have put me in a department I do not wish to pursue a career in and without asking me about my career progression or experience. I was told they do not have appropriate roles for me in the other departments which are better suited to my career progression. A relevant role did come up a few weeks ago in one of these other departments but it was not offered to me.
Also, on what basis can they refuse me redundancy if I was to ask for it now considering my role ended 31st July? I'm just wondering as I believe a re-organisation will take place in December but they have not told us this so it may not take place for some time after that date and in that case would I need to wait until a re-organisation and hope they will have something suitable for me and do whatever non suitable role they put me in in the meantime although thus far they have not shown any interest in my experience or the career trajectory I have invested in? Another concern is that my union rep has been very unhelpful and states that they can offer me a role that might deem suitable while I may not and I do not have much recourse but to accept it if they do. Where do I stand on this, again considering I am keen to move on and out of this ongoing uncertainty which is causing me much stress. On the gov.uk website under redundancy, it states that an employee has a right to a 4 week trial period with the role offered and that if the employee decided it's not suitable, they can give notice during this trial period without affecting statutory redundancy. Would this be the same under a tupe process and if so, my employer did not inform me of a trial period (is it his responsibility to do so?) and do I have go along with 'ironing out' a role if I deem the initial role offered unsuitable especially considering I did go along with it in good faith for 4 months now but nothing has transpired in this direction at all? During the past 4 months they have asked me to do tasks which de-skill me and which I was delegating to a team of students and have taken me away from a large part of my role which was key to professional development.
Customer: replied 1 year ago.
Also would any of the following apply to my case? Essentially, a large part of my role has been removed from me and I am left doing tasks I did many years ago which are quite basis and I was delegating to othersWhen considering whether or not an alternative role is suitable, employers should consider:the employee’s skills and experience (ie do they have the right skills and experience for the new role?); and
the terms of the alternative job including: status, place of work, job duties, pay, hours and responsibility (ie how similar are these to the old role?).
Maintaining status and pay is not necessarily sufficient to make an alternative job role “suitable” if there are other clear differences between the two roles. For example, if an employee would not use the same skills in a new role or their working hours are significantly rearranged, the new role is unlikely to be a suitable alternative.If the new role is entirely within an employee’s job description, they may be matched into it. If there are some differences between the two roles, the employee should be offered a trial period.
Customer: replied 1 year ago.
One more point, a few meetings were set up to discuss ironing out the role but this turned out to be the lower status and capability tasks and when I highlighted my frustration and said there didn't seem to be a suitable role for me, the response was you can always leave and find a new job. There has been a gap between what they say and do hence another reason I am keen to leave having given them an opportunity to find me a suitable role and as none have been forthcoming, I feel I am wasting my time and career progression the longer I am with them. Their actions and lack of interest in finding me a suitable role is wholly unreasonable and unacceptable.
Expert:  Ben Jones replied 1 year ago.

There are many factors which determine the suitability of a job. No one specifically decides if it is suitable but it is an objective thing. If there is a disagreement then only a tribunal can determine the final answer and if it is something which should be deemed suitable or not. The most common factors are:
• Job content/status – drop in status, substantial changes in duties, etc.
• Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, sick pay, holidays)
• Working hours – change in shift pattern, removal of overtime, extension/reduction of working hours
• Change of workplace – new location making it unreasonable to travel to the new place of work
• Job prospects – going from permanent to temporary work, becoming self-employed or being employed on a fixed-term contract.

They can reject redundancy for any reason – they cannot be forced to make you redundant so if they decide that you will have to either accept it or resign and claim constructive dismissal instead. The trial period you mentioned only applies to actual redundancy situations, not when there is just a change in role or following TUPE so you cannot rely on that here.

Your main argument here is the changes to your role following a TUPE transfer. Under Regulation 4(4) of TUPE any such changes are automatically void, unless the employer can show they were in no way connected to the transfer or if they were necessary for an economic, technical or organisational reason (ETO reason) subject to employee agreement or the terms of the contract permitting the change.

Some employers may try and justify changes by arguing that they are needed due to harmonisation and therefore rely on an ETO reason. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend a person's terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such changes so harmonisation will rarely be used as a justifiable reason.

If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not of itself break the connection.

It is for the employer to prove that a proposed change is permissible under TUPE and if there are concerns that the changes cannot be made, this can be challenged by raising a formal grievance first and then considering making a claim in an employment tribunal as discussed. Hope this clarifies things for you a bit more?

Customer: replied 1 year ago.
Thank you it does somewhat. Am I right in thinking the only way forward from here is to perhaps walk away and claim unfair dismissal? Do I have a case based on my concerns around job content and future job prospects based on the fact my role as it was became redundant on 1 August and the majority of the content and status has been removed which is de skilling me and will impact my future job and career prospects which I have invested heavily in or does the employer have a stronger case due to TUPE law despite such impacts to the employee?Or is there a way to make a case with the employer before taking this step?Apologies, I find UK law difficult to get my head around and appreciate the help. Thanks.
Expert:  Ben Jones replied 1 year ago.

Thank you for your response I am working in a tribunal today. I will review all the information given to me
and get back to you later in the day with my advice on how to proceed with this.
please do not respond to this as this may push your question to the back of the queue and you may experience delays.

Expert:  Ben Jones replied 1 year ago.

Hello again, if you were to resign and make a claim then it would be for constructive dismissal. An unfair dismissal claim is made if you are dismissed. So if the employer does not appear to be going for a dismissal, then you will have to consider resigning and claiming constructive dismissal However, it needs to be done without undue delay – the longer you leave it the more it may seem you had accepted the situation. Before you take that step you should consider challenging this internally by raising a grievance. If that does not help and the employer has made their final decision and you are still no further in resolving this, that is when the constructive claim comes in.

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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