Ring Fenced post help required

zzzLazyDaisy

Hi, okay, in simple terms...

Your existing role has disappeared, so you are in a redundancy situation.

The role that you have been invited to apply for is an alternative position.

In law, when redundancies are being considered the employer has a duty to look for alternative work within the company and to offer it to an employee who is facing redundancy. That is the process you are in now.

The difference is that if it was two identical existing jobs going down to one, that would be a case of selection for redundancy, and fair selection procedures must be followed. But where the posts have disappeared then the employees have less rights regarding selection for the new roles.

You are under no obligation to apply for the new post. Do you know if your colleague wants to stay with the company? If so, it is worth you both going together to HR (or whoever is dealing with the consultation process) and explaining that she wishes to apply for the new post and therefore you are willing to step down and accept redundancy.

In any case, remember that if the role is different from the job you did immediately before the reorganisation, you have the right to a four week trial period, and at any time during that period you are entitled to reject the job, in which case you would be redundant on the same terms and conditions as if you had been made redundant instead of starting the new job.

The reason I asked about the two year period was to make sure you had a statutory right to redundancy pay, as well as any contractual rights your employer might be offering.

Counter notice can be given by an employee who has been given formal notice of termination due to redundancy, but wishes to leave early. The counter notice must be given in writing, however the employer is entitled to refuse and to insist on the full notice being worked.

More information on redundancy here:

http://www.tssa.org.uk/article-46.php3?id_article=2126

(note the above isn't a legal reference, but it is a good enough summary)

daisyf_2

thanks for that information - very helpful - i had been advised before that i was under no obligation to apply for the post and others who have just gone through a similar process for others role - have not applied and got redundancy. We have both been put in a centre pool to look at the alternative job posts coming up in our company which of course there are hardly any.

Regarding your question about the other colleague at the moment I think he does want to stay within the company, whether to do this role or he is looking for others in the company. Although currently he is less keen to take the job upon reflection of how we have been treated and has also been applying for other jobs externally.

He is my manager at present so this post would be a downgrade for hiim although he would have his salary protected for three years. At the first meeting of consultancy I asked for redundancy but they said it was too soon to make a decision and that this was not a right and he wanted to take the role. I made sure this was logged in front of the union rep.

When we have the redundancy meeting next month - do I ask again about redundancy or just sit and wait til the 12 weeks is up? It is hard to know what to do? As I have asked for redundancy before on the first day of the 90 day consultation.

daisyf_2

sorry another question - so if i dont apply for the alternative position will that be deemed as dismissal by me and explain that job role is beyond my capabilities etc etc or can i just wait not apply and work til the end of the 12 weeks or earlier......

getmore4less

At the end of the day it all comes down to agreement and if none is acheaved a ET gets to decide.

Counter notice came up a while back as a way to stop them finding a job lastminute and withdrawing redundancy(eg they find out you have a job and will leave anyway).

The way I understand it is that one you are in notice the rules change a bit, before then you have to take a suitable alternative job if there is one.

Once in notice you need to mutualy agree the withdrawing of notice(and redundancy).

Because you are being made redundant(with payments) you need to have a good reason to refuse and having another job to go to is a good enough reason(* see below) if the employer find you a job before they know you have one to go to they can argue that their job is the oine you shjopuld take allthough a lot of employers will still let you go with payment some won't and it would need an ET.

Counter notice preempts this by you telling your employer you have a job and are leaving ASAP. In yourt case you have 10weeks stautory notice so if your notice tothem is shorter say 4weeks/month you could counter notcice and leave in 4 weeks and still get paid redundancy.


DOnot just take my view on this, it seems to be a little used piece of legislation but a search will find some other examples of this in use.

eg
http://www.tssa.org.uk/article-46.php3?id_article=2126

http://www.i-resign.com/uk/discussion/new_topic.asp?t=4622

the relevent bit of the act is 136(3b)
(3)An employee shall be taken to be dismissed by his employer for the purposes of this Part if—
(a)the employer gives notice to the employee to terminate his contract of employment, and
(b)at a time within the obligatory period of notice the employee gives notice in writing to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire

Basicaly this says that if you terminate earlier(counter notice) then you have still been dismissed and the key is this still has to be the same reason redundancy.

daisyf_2

thanks for this - never knew about counter resignation before very helpful xxxxxxxx

getmore4less

daisyf wrote: »

sorry another question - so if i dont apply for the alternative position will that be deemed as dismissal by me and explain that job role is beyond my capabilities etc etc or can i just wait not apply and work til the end of the 12 weeks or earlier......

Currently the ball is with the employer.

They have put you at risk because your job is gone.

Either they find an suitable alternative(or you find one) or they make you redundant.

If they start to try to get you to do the job as a suitable alternative you need to fight on the grounds of it being unsuitable.

The default action should be redundancy if you both do nothing.

getmore4less

daisyf wrote: »

thanks for this - never knew about counter resignation before very helpful xxxxxxxx

Chances are your employer might not either..

If they would be happy to let you go on shorter notice(saving money) it might be worth a go.

It can be a bit cat/mouse these redundancy situations,

eg. the employer was protecting themselves by saying it's too early to discuss redundancies in the early consultation meetings.
In later meeteing there will be evidence that that there was constructive consultation and that discutions need to move onto alternative rolls and redundancy.

zzzLazyDaisy

daisyf wrote: »

When we have the redundancy meeting next month - do I ask again about redundancy or just sit and wait til the 12 weeks is up? It is hard to know what to do? As I have asked for redundancy before on the first day of the 90 day consultation.

Okay, I understand...

To protect themselves from any future claims, the employer would have been advised to make it clear that no decisions will be made about making any individual redundant at that stage.

At the next consultation meeting, I suggest that you tell them that you have considered the alternative post(s) available, but that you do not consider it to be an offer of suitable alternative employment, and therefore you wish to accept redundancy.

This is not a termination or resignation by you. Your employment with the company will end by reason of redundancy.

This is the difference between the two scenarios I referred to before - you cannot refuse to participate in a selection process for redundancy, but you can decline to participate in an exercise to find you some other role in the company once it has been established that your existing job is redundant ( which is where you are at now).

At some point you will be given formal notice of termination of employment. You will either be required to work your notice, or the employer may agree to let you go early, and give you a lump sum payment in lieu of the wages you would have earned had you worked your full notice.

At any time during that notice period you can give formal written counter notice to leave early, but if the employer accepts that, you wouldn't be entitled to receive payment for the balance of the notice not worked, so if you wish to leave early it is better to try and negotiate this with your employer as part of your severance package, rather than serving legal notice.

I think what you have to remember (and accept) is that this 90 day consultation period is probably just as frustrating for your employer, who probably just wants to get things over and done with. But there are legal requirements for an employer in this situation and if they get it wrong the financial penalties can be quite severe. So you just have to take a deep breath and go with the process.

Hope this helps, but if anything isn't clear or you have other questions, just keep posting.

daisyf_2

thanks guys that has been the most help I have received - and very much appreciated.

I think I have everything clear in my mind.

The only consultation meeting we now have planned is when it comes to an end of the 90 day and then we are given our redundancy letters. That is when I am going to ask again for redundancy and say that the alternative solution is not what I want and explain my reasons. When I get back to work I will go through the new draft job spec with a fine tooth comb

i might have another question but in the meantime thank you so much for all your help - xxxx

zzzLazyDaisy

You're welcome. It is a stressful time.

What might be simply a matter of procedure for lawyers and HR professionals is often extremely confusing for the employees caught up in the process - all the more so because the employer can't risk giving you too much information too early in the process, because that could come back and bite them later if someone complains to an ET.

It is easy for me to say, but try not to over-analyse it, or think about the 'what ifs'. If you hit a problem come back and we'll try to help you, but the most likely scenario is that you will shuffle through the process until you pop out the other end with a redundancy payment in one hand and the start date for your new job in the other!

As an aside, it is worth considering building in a few days break between one job ending and the start of the next, if you can, and give yourself a bit of a treat with some of that money