Employment law

[SO16_Saint]

Question for anyone who knows employment law.  

if someone was moved from a post (at end client request, no process or disciplinary followed) and seconded to another for 6 months, and original post filled by a permanent person.  What happens at the end of the 6 months?

this person can’t be made redundant as the post still exists, correct?

 

curious... 

[Whitey Grandad]

I am certainly no expert but as you say it’s the post that becomes redundant and not the employee. I would have thought that the employer must provide an alternative employment of at least equal status and remuneration as the previous one.

There are sources of help out there who are much more knowledgeable than me. ACAS for example.

[Weston Super Saint]

Was the person that was moved a 'permanent' employee or a contractor.  If contractor, then tough!

If permanent employee then it's more complicated.  How much time served in the company?  If under two years, then tough.  If over two years then there would need to be a consultation.  The original role would be deemed to be no longer existing in this case as it has been filled by someone else.  As long as a full consultation took place with all alternatives within the company considered - including other locations within a reasonable travelling distance as well as other roles with equal or less status and remuneration - then redundancy could well be a legitimate option.

There must have been some sort of consultation previously for the person who was moved to have been moved - presumably the client request was a result of conduct or performance.  I'm fairly certain that 'accepting' the move would be a legitimate reason for the employer to 'backfill' the role that was moved from - even if the alternative to accepting the role would have been dismissal on either conduct or performance basis.

[whelk]

It should be clear at start of any secondment that the substantive role either remains open to return to ie replaced by temp role so a domino type effect(or temp contract replacement) or would be permanently filled. Not sure anyone woudl take a 6 month secondment (although sounds like just done to them] with nothing to return to.

I would never allow a situation like that to take place in any of my teams so I woudl say absolutely grounds for a grievance

Edited 8 January, 2021 by whelk

[SO16_Saint]

Thanks.  

So Person A was moved from Post 1 and subsequently Person B was placed in to Post 1 (permanently), then Person A was moved in to Post 2.

No new contract was ever provided to Person A and a ‘we’ll see what happens in 6 months time’ and ‘there would be no change to your contract or anything like that’   comment was given to Person A by their Manager - in writing. 

Person A is fairly relaxed because no process has been followed by Company.

is this misplaced relaxation?

[Weston Super Saint]

Personally, I would say yes.

However, nothing in HR is ever that black and white so you would need to refer to specific terms in the contract.

You also need to consider length of service.  If person A has less than 2 years service (at the end of the 6 month secondment) then they don't have a leg to stand on anyway.

If its pretty much certain that there will be other work available at the end of the six months, I'd say there shouldn't be an issue.  I wouldn't expect that Post 1 would be an option - unless the company is planning on getting rid of person B if they have less than 2 years service (although it's unlikely if the client doesn't want Person A!).

The contract would be general terms and conditions anyway so there would be no need for a new one to be issued to Person A - it would also have a clause in there about carrying out any work to be deemed 'suitable' by the company anyway.

[SO16_Saint]

8 minutes ago, Weston Super Saint said:

Personally, I would say yes.

However, nothing in HR is ever that black and white so you would need to refer to specific terms in the contract.

You also need to consider length of service.  If person A has less than 2 years service (at the end of the 6 month secondment) then they don't have a leg to stand on anyway.

If its pretty much certain that there will be other work available at the end of the six months, I'd say there shouldn't be an issue.  I wouldn't expect that Post 1 would be an option - unless the company is planning on getting rid of person B if they have less than 2 years service (although it's unlikely if the client doesn't want Person A!).

The contract would be general terms and conditions anyway so there would be no need for a new one to be issued to Person A - it would also have a clause in there about carrying out any work to be deemed 'suitable' by the company anyway.

So... IF there is no work for Person A at the end of the 6 month secondment... what happens?  They can’t be made redundant as their role still exists, it’s just that the Company placed Person B in the post. 

[Weston Super Saint]

1 hour ago, SO16_Saint said:

So... IF there is no work for Person A at the end of the 6 month secondment... what happens?  They can’t be made redundant as their role still exists, it’s just that the Company placed Person B in the post. 

How long have they been employed, is it less than 2 years?  If so, then there really is nothing they can do.

Secondly, whilst Post 1 still exists, Person A is no longer doing that.  They accepted the move to Post 2, so it's irrelevant whether or not Post 1 still exists as it is not their 'current' role.  Post 2 would be the role that would be being made redundant, which is the one that Person A accepted.

Even though there was nothing formally written regarding Person A taking Post 2, the company would merely claim 'custom and practice' and the fact that they have been carrying out the role (which would no longer be needed) for six months.

Then (providing they had worked for over 2 years) it would be a redundancy situation and the appropriate consultation would need to be carried out and alternative options within the company (if any) considered.

[Clapham Saint]

19 hours ago, Weston Super Saint said:

How long have they been employed, is it less than 2 years?  If so, then there really is nothing they can do.

Secondly, whilst Post 1 still exists, Person A is no longer doing that.  They accepted the move to Post 2, so it's irrelevant whether or not Post 1 still exists as it is not their 'current' role.  Post 2 would be the role that would be being made redundant, which is the one that Person A accepted.

Even though there was nothing formally written regarding Person A taking Post 2, the company would merely claim 'custom and practice' and the fact that they have been carrying out the role (which would no longer be needed) for six months.

Then (providing they had worked for over 2 years) it would be a redundancy situation and the appropriate consultation would need to be carried out and alternative options within the company (if any) considered.

Sorry to say this if SO16 is Person A but I think Weston's assessment is correct.

 

Even if Person A has over 2 years experience I would have thought that if there was a redundnacy process and Person A and Person B were both asked to apply for the only remaining post then it would be reasonably easy for the employer to select Person B becuase the end client has asked that Person A not work in that role.

 

I hope it isn't you SO16 but good luck to Person A in either event.

[Weston Super Saint]

1 hour ago, Clapham Saint said:

Sorry to say this if SO16 is Person A but I think Weston's assessment is correct.

 

Even if Person A has over 2 years experience I would have thought that if there was a redundnacy process and Person A and Person B were both asked to apply for the only remaining post then it would be reasonably easy for the employer to select Person B becuase the end client has asked that Person A not work in that role.

 

I hope it isn't you SO16 but good luck to Person A in either event.

I don't think they could ask Person B to apply in the event of a redundancy situation as it is the role that is redundant.  Person B is carrying out Role 1 whereas Person A is carrying out Role 2 (which would be the role that is redundant).

They could of course ask if there are any volunteers for redundancy, in which case Person B could be considered.

[aintforever]

On 08/01/2021 at 07:36, Weston Super Saint said:

Was the person that was moved a 'permanent' employee or a contractor.  If contractor, then tough!

If permanent employee then it's more complicated.  How much time served in the company?  If under two years, then tough.  If over two years then there would need to be a consultation.  The original role would be deemed to be no longer existing in this case as it has been filled by someone else.  As long as a full consultation took place with all alternatives within the company considered - including other locations within a reasonable travelling distance as well as other roles with equal or less status and remuneration - then redundancy could well be a legitimate option.

There must have been some sort of consultation previously for the person who was moved to have been moved - presumably the client request was a result of conduct or performance.  I'm fairly certain that 'accepting' the move would be a legitimate reason for the employer to 'backfill' the role that was moved from - even if the alternative to accepting the role would have been dismissal on either conduct or performance basis.

 

Edited 9 January, 2021 by aintforever

[Clapham Saint]

On 09/01/2021 at 13:23, Weston Super Saint said:

I don't think they could ask Person B to apply in the event of a redundancy situation as it is the role that is redundant.  Person B is carrying out Role 1 whereas Person A is carrying out Role 2 (which would be the role that is redundant).

They could of course ask if there are any volunteers for redundancy, in which case Person B could be considered.

I won't claim to be an expert. Some experience from the employers' side but that's all so happy to defer.

 

My reasoning was that it sounds from the OP as though person A was seconded elsewhere - which implies that they would (in theory at least) be returning.

If they were to return then there are now two people and only one role.  Hence why I suggested that they might be both asked to reapply for the role as part of a process.

 

N.B. Posts where people question why another poster said that they are wrong can often come across as unnecessarily aggressive.  I hope this doesn't come across this way - I'm genuinely interested in why this doesn't work.

[Weston Super Saint]

1 hour ago, Clapham Saint said:

I won't claim to be an expert. Some experience from the employers' side but that's all so happy to defer.

 

My reasoning was that it sounds from the OP as though person A was seconded elsewhere - which implies that they would (in theory at least) be returning.

If they were to return then there are now two people and only one role.  Hence why I suggested that they might be both asked to reapply for the role as part of a process.

 

N.B. Posts where people question why another poster said that they are wrong can often come across as unnecessarily aggressive.  I hope this doesn't come across this way - I'm genuinely interested in why this doesn't work.

None taken

For me, the clarity is in the OP where the person was 'seconded' (personally I feel that this is the wrong term and perhaps 'relocated' would be a better one to use as seconded does indeed imply a return) at the request of the end client.

Whilst no process or formal disciplinary took place (this could potentially be important if a dismissal were to happen, but the fact that the person then worked for six months after the move, therefore 'accepting' the relocation, could reduce the impact), unless the 'end client' in the original job has changed, then it is unlikely that they will want the person back doing the job they've requested someone else to do.

That would then only leave alternative work within the company (if any is available) or redundancy / employment termination, depending on the length of service.

[SO16_Saint]

Ok. So update on this.  
 

Person A has now secured a new job with a better company and an £12K pay rise.

question now is would I, I mean, Person A, be able to pursue a constructive dismissal claim?

edit:  actually scrub that.  I don’t give a damn about any monetary award here, what I really want to do is highlight to them just how shite they have made me feel over the whole issue, and they have shown no compassion, support or humility and they need to know this.

Edited 23 January, 2021 by SO16_Saint

[Weston Super Saint]

11 hours ago, SO16_Saint said:

Ok. So update on this.  
 

Person A has now secured a new job with a better company and an £12K pay rise.

question now is would I, I mean, Person A, be able to pursue a constructive dismissal claim?

edit:  actually scrub that.  I don’t give a damn about any monetary award here, what I really want to do is highlight to them just how shite they have made me feel over the whole issue, and they have shown no compassion, support or humility and they need to know this.

Constructive dismissal is a tricky one to prove as you need to show you had no other choice but to leave.  Again, you need to have two year's service before a claim can be made.  Not only that, but if you, I mean Person A, has already found a new, better paying job, then there would be no financial loss to compensate anyway.

Whilst it's been a shit situation, Person A needs to move on now, enjoy the new job and wealth increase and remember it's just business and not to take it personally.

Congrats on the new job

 

[SO16_Saint]

1 hour ago, Weston Super Saint said:

Constructive dismissal is a tricky one to prove as you need to show you had no other choice but to leave.  Again, you need to have two year's service before a claim can be made.  Not only that, but if you, I mean Person A, has already found a new, better paying job, then there would be no financial loss to compensate anyway.

Whilst it's been a shit situation, Person A needs to move on now, enjoy the new job and wealth increase and remember it's just business and not to take it personally.

Congrats on the new job

 

Thanks Weston.

I’ll definitely be moving on, and asking for an exit interview.  They (the manager) needs to know how their behaviour affects others and the reputation of the business.

[Clapham Saint]

Congrats on the new job.

 

One note of caution though.  No matter how aggrieved person A might be it is rarely a good idea to "let rip" in an exit interview - although that isn't what you said that you were intending to do, it sounds as though you might be considering it.

 

By all means let them know that you felt undervalued but I would try to avoid burning bridges unless there is no other option.

 

Congrats again.

 

B