Employment law

Discussion in 'General Chat' started by eric pisch, Feb 4, 2009.

  1. eric pisch

    eric pisch
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    If an employer decides your job is no longer relevant, gives you a new job description a reduced responsibility and a reduced salary do you have any legal protection? (government employer)

    Can you ask for redundancy?

    Are there any laws that protect your salary for a period of time like tupe?

    Any where you can get advice like ACAS?

    Thanks
     
  2. Iccz

    Iccz
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    Can you be given a new job description without signing anything? - Unsure.

    I know you can't have salary reduced without you signing...? - Fairy sure.

    They can reduce your hours, but not your salary. - Totally sure.
     
  3. Steven

    Steven
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    That would depend on the exact construction of your written contract of employment and the exact job description in writing. How the original job was advertised and described in the interview may also be relevant

    Employers can carefully word a contract and rulebook (rulebooks are not contractual but do reflect managerial prerogative)

    For example, they can mention the requirement to be flexible. They could call you a "sales engineer" in the contract rather than specifically in export or domestic sales. Or you could always have worked in maintenance but the contract could say "maintenance and some technical duties"
    You see what I am getting at? All those examples come from case law where it was held the employer was entitled to transfer the employee

    So it depends on your contract

    And on the question of less skills or responsibility... again depends on the facts. Could be a case of "tough" or "constructive dismissal"

    None of that could apply to you. This is only a general answer

    Also just to add, if they have been able to find a new or similar position for you at first glance I cannot see how you can claim redundancy

    But again you would probably be looking to speak to people like ACAS and divulge the full facts so a definitive answer can be given
     
    Last edited: Feb 4, 2009
  4. carling

    carling
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    I used to work for Miller Brothers until they went bust and my branch was taken over by Empire Direct. This is exactly what they did to me, they decided they didn't need my position and gave me a new contract, which I refused to sign, for a different role. They gradually reduced my responsibilities and authority, and pay, until I resigned and started a claim for constructive dismissal. They settled before it came up.

    You have to have been employed for at least two years.
    You can't get another job and then resign. That's just resigning. You have to show that you were forced out and then had to find a new job.
    Get everything in writing. Copies of emails, letters, memos, pay slips, contracts, everything. Don't do anything by phone, always by email or letter.

    But I'm not a lawyer and every case is different. Check out the ACAS website as they have advice there and/or see a lawyer. I saw a employment specialist who charged me about £100, worth it in my case.
     
  5. Phil57

    Phil57
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    :lesson:..One year now, yes it used to be two years, several years ago.
     
  6. nheather

    nheather
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    Not an expert in this field but quite a few years experience under my belt.

    Obviously, you haven't give us all the details but it sounds like this is a job change with the same employer - in that case TUPE isn't relevant. TUPE is for when you are moved between different companies or sometimes different divisions\business units.

    But from what you have described I would think

    (i) Your existing job has been made redundant

    (ii) You have been offered another job but this has different terms and conditions.

    Your employee can do both of these legally. However, you have a right to refuse the new role and if the employer is unable to offer you a position to your satisfaction then you are entitled to redundancy.

    Please note that if they offer you a similar job, with same\better pay and responsibilities, same location but you don't like then you might have difficulty rejecting that one and claiming redundancy.

    Cheers,

    Nigel

    p.s. Also note that they have to make the job redundant. If they move you elsewhere and put someone else in your old job then they will have acted illegally.
     
  7. carling

    carling
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    My bad. That's why you should see a real lawyer....:oops:
     
  8. WHUFC

    WHUFC
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    Sod the law, re-enact the scene out of Fightclub with your boss :)

    ..
     
  9. loz

    loz
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  10. Greg Hook

    Greg Hook
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    Sounds to me like you would have a good case for constructive dismissal.

    We have made a few people redundant at work over the last 6 months and whilst thinking up alternatives at the time, I consulted our employers legal helpline that we have with Sage and mentioned things about reduced hours, responsibility etc and it is firmly in the grounds of constructive dismissal.
     
  11. mistry

    mistry
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    i went through a restructure recently and was advised that if my job changed by more than 50% then i would be entitled to redundnacy...
    maybe more to do with my employers own policies but worth checking it out if your job role has changed drastically that in affect your old role no longer exists and therefore has been made redundant...
     
  12. eric pisch

    eric pisch
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    Ok its not me but someone i know, employed for over 5 years.

    they run a government department and it is now being split into two different buildings with the functions being split between them and approx half of the team going to each building. Both departments will have a team leader but with reduced responsibility and reduced pay scale.

    As a side note they are currently advertising a similar job at the current pay grade in a different department.

    We are going to speak to the unions today and ACAS
     
    Last edited: Feb 5, 2009
  13. unique

    unique
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    under the situation you explain, normally the employer would consider the post redundant, and create a new post with the job description, terms and conditions and salary appropriate to the new post. thus the employee would be made redundant, and offered the chance to apply for the new post with those terms

    the employee does not have to accept the new post, but if it's considered a reasonably alternate post the employee may not have the right to redundancy pay, although if the salary decreases then that may be a different story. from what you say, it sounds like the requirement for the post is a big change with big change in pay, so the employee's old post should be made redundant and a new post offered, or redundancy pay if the employee doesn't want the new post

    if the empoyer forces the new terms and/or pay the employee may have grounds for constructive dismissal, but there are specific steps that have to be taken, otherwise the employee may not be awarded at the tribunal. you should seek advice from ACAS and/or CAB regarding this. you have to take steps to notify your employer of the complaint and give them time to correct it, you can't just leave and claim constructive dismissal

    terms and conditions of employment (aka a contract of employment) are binding by the fact the employee attends work. T&C don't have to be in writing, but usually are, and they don't have to be signed to be binding. it's essentially up to the employee to obtain the terms before starting work, and to make a formal complaint if the terms are changed. whilst an employer shouldn't, they can simply create new terms, advise staff of them and expect them to be followed. not a nice situation, but it would be up to the employee to take the appropriate action, which would likely end in constructive dismissal if the employer didn't amend the terms and the employee no longer wanted to work under the new terms

    to directly answer the questions,

    1) YES, but you shouldn't have to ask for redundancy, it should be offered to the employee, otherwise it's voluntary redundancy which can affect benefit claims

    2) NO, it's not a tupe case. there are many laws, but the employer can make one post redundant and offer a new one at a lower pay rate

    3) ACAS is free and open to anyone, CAB is an alternative, but CAB deal with all sorts of things whereas ACAS are specificly employment. the federation of small businesses has great helplines, but not much use for employees unless they know someone who can ask the q's for them. apart from ACAS you have to talk to employment lawyers, but there shouldn't be any need for it

    lastly, remember that one persons explanation of events can differ from what is actually happening. it's normal for some quite important aspects to be lost in conversation and simplified to the point of having another meaning. i would expect if it's a government post they would follow the correct procedures as i mentioned above
     
  14. Londondecca

    Londondecca
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    This is an interesting one. A person who willingly quits a job would not normally be entitled to claim benefits eg mortgage insurance, however in most cases the employer will normally state the reason for leaving was redundancy and therefore negates the problem. My view is that voluntary redundancy is still is dismissal and but for the imposed situation the person would still be employed.

    ACAS would be my first place to get information. It would be useful if you had your contract or any other relevant information to hand. I would also suggest writing down notes of who said what and when. Contemporaneous notes can be very useful documents.
     
  15. unique

    unique
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    perhaps smaller employers with a small number of staff would "assist" staff who are "helping out" the employer by taking voluntary redundancy would hide the voluntary part on the form, but i would imagine larger companies with many staff would stick by the book. on some forms you can declare "redundancy" and that's the end of the story, but in some cases you get a second form to request the reasons for redundancy and confirmation of if it was compulsory or voluntary. for example, a claim for mortage or other loans insurance would probably ask that specific question. if the employer makes a false declaration they are essentially assisting the employee commit fraud. as the individual is no longer an employer, most employers wouldn't want to take the risk as they have no control over what the employee may advise themselves directly

    voluntary redundancy certainly isn't dismissal. voluntary redundancy is normally when an employer has a requirement to shed x number of posts and asks for people to volunteer for redundancy, thus the employee has chosen to leave the post. after voluntary redundancy, there may be a second round of compulsory redundancys, but those who have taken voluntary redundancy could have possibly had a job after the redundancy selection process was completed, thus they have effectively given up a job if that was the case. benefits and claims usually revolve around whether the choice to leave the job was made by the employee or employer, thus it was the employees choice to leave the post, thus they usually won't be able to claim benefits for leaving a job of their own choice. if an employee is dismissed from a job for misconduct they can also loose benefits. this is to prevent employees getting fired on purpose so they can make a benefit claim (i imagine mortgage insurances may be the same, so you can't just get fired and not have to work to pay your mortgage)
     
  16. Londondecca

    Londondecca
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    The EAT Optare Group -v- TGWU (2007) UKEAT/0143/07/RN confirmed voluntary redundancy is still a dismissal on the grounds of redundancy.

    The CIPD says

    ....voluntary redundancy is not a resignation. Individuals who volunteer for redundancy are in the same legal position as employees selected compulsorily, for example in relation to their right to receive a statutory redundancy payment. The volunteers have not had their employment terminated by mutual agreement, but have effectively been dismissed.

    CIPD - Redundancy

    I do however accept this could lead to confusion/conflict with some insurance or state benefits but I am not conversant with up to date benefits etc as it has been quite a few years since I was professionally involved in these issues.
     
  17. Steven

    Steven
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    If an employer is trying to attach the wrong label where it should in fact be for example constructive dismissal, then that is a separate matter entirely
    Londondecca, sorry but you are confusing 'resignation' and 'dismissal' and using them interchangeably. They most certainly are not the same thing and your website links will not say that either. Redundancy means just that and resignation does not enter the equation and Unique certainly did not say that

    If an employer forces an employee to take redundancy, or further still to resign (as per the notice terms in the contract of employment), then an employer is liable under unfair or wrongful dismissal
     
  18. Londondecca

    Londondecca
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    LFC_SL, I am confused as I have not mentioned resignation. My original point was the interesting issue regarding voluntary redundancy and and insurance benefits whereby someone can be dismissed on the grounds of redundancy but may have some trouble claiming certain benefits

    I would disagree, redundancy is by its nature forced upon an employee, this could potentially be unfair dismissal but it might not
     
  19. Steven

    Steven
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    Maybe so but the law has to strike a balance between the rights and needs of an employer and an employee

    If for example there is an agreement with a union for redundancy due to diminished requirements for a particular kind of work, then I do not see a problem. What is an employer meant to do? Ask the Government for money? ;) :D
     
  20. Desmo

    Desmo
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    There's a lot of misinformation in here about what you can and can't do when it comes to changing an employees hours, pay and job role. A lot of it comes down to individual contracts.

    We recently looked in to cutting back on an employees hours and pay and were told by ACAS that as long as that person took home no less than 50% of their current take home pay, that was fine.
     
  21. unique

    unique
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    it depends on your idea of fine, and what the contract says

    i'm presuming the employee has a contract that states something like "your normal hours are X per week, but we reserve the right to amend your hours to suit the needs of the business, such as reducing hours during quiet periods or offering more hours during busy times"

    the 50% reduction "is fine" with a contract like that. if you reduce the hours to less than 50% the employee is formally "laid off" (this term is commonly used to refer to redundancy, but redundancy usually relates to staff who won't return to that employer, whereas being laid off means you either work for greatly reduced hours or stop working for a period, and then return to work, your employment is not terminated. if your employment is later terminated you are entitled to redundancy pay, and you are then redundant). there is more information on that below


    Temporary lay-off: introduction : Directgov - Employment


    i think some of these comments highlight how each individual case can vary per employer, and how much they should vary, so it's always a good idea to get in touch with ACAS if you are unsure, as what one person is entitled to can be completely different to another
     
  22. Desmo

    Desmo
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    Which is what I was trying to highlight by giving an example :)

    Posts earlier on said you couldn't cut back on hours or pay when you can, it just depends on individual circumstances.
     

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