Unsure if I have a case for a grievance or constructive dismissal. Please help!

monkeydrum

Apologies for the lengthy post, but this date's back to 2011. My situation is as follows...

- In November 2011 I was TUPE'd to another part of my company (it's a large global firm, so it was an internal transfer to another subsidiary)

- During the TUPE, I was given the opportunity to stick with my default role or apply for a new role in a different team (this was due to my skills overlapping)

- I opted to go for the new role and was interviewed for a position. I was offered the job and accepted the new role

- Throughout 2012, I received no work or support from my new team leader/manager whatsoever, despite multiple attempts to contact him and raise the issue

- In February 2013 (15 months later) I suddenly find that my role and reporting line has changed dramatically without consultation. My duties and responsibilities were drastically reduced and I felt like I had effectively been demoted

- By this time, my original default role had been backfilled so I did not have the option to revert back

- During the same period, new members were joining my team in senior positions, but the roles were not advertised internally, so I was denied the opportunity to earn promotion

- Throughout 2013, I consulted with HR about all of these issues, unfortunately to no avail. I was basically told that the job I thought I had accepted actually no longer existed. My only option was to walk away

This is a very brief summary, but the bottom line is I feel I was misled and then consequently denied further opportunities because new roles were not advertised and were filled by new managers bringing in preferred new staff. With a little baby and a mortgage I wasn't in a position to simply walk away. So in a nutshell, I've been doing a watered down job I didn't actually accept for over 4 years. I've worked hard and done everything that's been asked of me, but in the back of my mind I knew redundancy could be on the cards at some point, so I just kept my head down because I have 16 years service (and an enhanced redundancy package)

Fast forward to 2016, and my company finally announces a major restructure with many jobs being put at risk. The vast majority of my colleagues are made redundant, but within my team (of which there are 7 members) I am one of the "lucky" ones that they they propose to TUPE to an external service provider. It’s worth noting that out of the 7 team members, the 3 staff who are unaffected have all been recruited in recent years by the new management team. The 4 members who have been chosen for redundancy or TUPE have many more years’ service but were not recruited by the new management team. For me, this decision to single me out has grave consequences because I will be forced to leave the final salary pension scheme which is a huge benefit for me. So after putting up with the situation for 4 years in hope of eventually being offered redundancy, I'm now being told that I will continue (in the job I didn't accept) at the external company, albeit with less benefits!

The bottom line is, I fully appreciate they are entitled to TUPE me across without the pension being honoured, but there are a few outstanding questions i.e. Are they allowed to make 2 members of my team redundant without putting us all at risk? Are they allowed to cherry pick 2 members of my team for TUPE whilst the other 3 (with a much shorter service record) remain unaffected? And finally, coupled with my personal issues dating back to 2011, does all of this amount to enough evidence to warrant raising a grievance?

Thank you for your time. Any advice would be much appreciated

sangie595

monkeydrum wrote: »

Apologies for the lengthy post, but this date's back to 2011. My situation is as follows...

- In November 2011 I was TUPE'd to another part of my company (it's a large global firm, so it was an internal transfer to another subsidiary)

- During the TUPE, I was given the opportunity to stick with my default role or apply for a new role in a different team (this was due to my skills overlapping)

- I opted to go for the new role and was interviewed for a position. I was offered the job and accepted the new role

- Throughout 2012, I received no work or support from my new team leader/manager whatsoever, despite multiple attempts to contact him and raise the issue

- In February 2013 (15 months later) I suddenly find that my role and reporting line has changed dramatically without consultation. My duties and responsibilities were drastically reduced and I felt like I had effectively been demoted

- By this time, my original default role had been backfilled so I did not have the option to revert back

- During the same period, new members were joining my team in senior positions, but the roles were not advertised internally, so I was denied the opportunity to earn promotion

- Throughout 2013, I consulted with HR about all of these issues, unfortunately to no avail. I was basically told that the job I thought I had accepted actually no longer existed. My only option was to walk away

This is a very brief summary, but the bottom line is I feel I was misled and then consequently denied further opportunities because new roles were not advertised and were filled by new managers bringing in preferred new staff. With a little baby and a mortgage I wasn't in a position to simply walk away. So in a nutshell, I've been doing a watered down job I didn't actually accept for over 4 years. I've worked hard and done everything that's been asked of me, but in the back of my mind I knew redundancy could be on the cards at some point, so I just kept my head down because I have 16 years service (and an enhanced redundancy package)

Fast forward to 2016, and my company finally announces a major restructure with many jobs being put at risk. The vast majority of my colleagues are made redundant, but within my team (of which there are 7 members) I am one of the "lucky" ones that they they propose to TUPE to an external service provider. It’s worth noting that out of the 7 team members, the 3 staff who are unaffected have all been recruited in recent years by the new management team. The 4 members who have been chosen for redundancy or TUPE have many more years’ service but were not recruited by the new management team. For me, this decision to single me out has grave consequences because I will be forced to leave the final salary pension scheme which is a huge benefit for me. So after putting up with the situation for 4 years in hope of eventually being offered redundancy, I'm now being told that I will continue (in the job I didn't accept) at the external company, albeit with less benefits!

The bottom line is, I fully appreciate they are entitled to TUPE me across without the pension being honoured, but there are a few outstanding questions i.e. Are they allowed to make 2 members of my team redundant without putting us all at risk? Are they allowed to cherry pick 2 members of my team for TUPE whilst the other 3 (with a much shorter service record) remain unaffected? And finally, coupled with my personal issues dating back to 2011, does all of this amount to enough evidence to warrant raising a grievance?

Thank you for your time. Any advice would be much appreciated

I am afraid that your historical "personal issues" don't exist. By continuing to work you agreed to everything, and that is the end of the matter. You cannot start raking up matters that are years old and which you did nothing about at the time. And nobody has a right to progression, so that is entirely irrelevant to everything - they didn't have to let you apply, they didn't have to even advertise, and they can appoint who they want.

So that leaves you only with what is happening now. And there isn't enough information to comment on much. Can they make two people redundant without putting your all at risk? Possibly. Being a member of a team doesn't mean you have the same job role. And you haven't clarified this aspect. But even so, the can select on economic grounds. In other words, who is cheaper to make redundant. Can they keep the other three and transfer two. Well we have no information add to the basis of this choice, but your assertion that they have less service definitely isn't if any relevance. You need to be able to explain why they are considered out of scope and you aren't. If you don't know the answer to that, you need to ask.

You can raise a grievance whenever you want about anything you want. But based on what you have so far said, you don't have a case to put, and it isn't even remotely a case of anything in law. Almost nothing you have said will ever make a case, so you are only left with whether what we don't know makes a difference- the basis on which the decisions were made by the employer, and not by your assumptions about service.

Mersey_2

Not quite. It's certainly true that a resignation needs to be prompt to be relied upon in constructive dismissal claims.


However, in Adamas Ltd v Cheung (2011), the Privy Council rejected the suggestion that any employee who continues to work after their employer has committed a fundamental breach is deemed to have accepted the new working conditions.


The claim for unfair dismissal succeeded even though the employee only refused to carry out the requested new work on the third occasion. Even though they had agreed on occasions one and two, there was still a fundamental breach of contract, as the employee's contract did not require them to carry out this work.

In relation to redundancy, employers do not have carte blanche to select or omit someone from the pool eg because their face doesn't fit. There has to be objective criteria and the same has to be documented in a clear chronological paper trail, when deciding upon the pool of potential redundant roles. Otherwise they're open to challenge and being sued in the County Court for breach of contract.


Consequential losses can be actionable eg if an employer dismisses someone a month before a bonus is due to avoid paying it. Pension rights/accruals are more complex and there's an ongoing case at the moment which may aid you when Judgment is eventually handed down.


In the meantime, given your extensive level of service, I'd recommend you seek legal advice from an employment law solicitor. Some provide a free 30 minute consultation and then should provide you with an hourly rate of eg £150 for a written advice. Some barristers also now offer 'direct access' to the general public for an opinion in this area of law.

sangie595

Mersey wrote: »

Not quite. It's certainly true that a resignation needs to be prompt to be relied upon in constructive dismissal claims.


However, in Adamas Ltd v Cheung (2011), the Privy Council rejected the suggestion that any employee who continues to work after their employer has committed a fundamental breach is deemed to have accepted the new working conditions.


The claim for unfair dismissal succeeded even though the employee only refused to carry out the requested new work on the third occasion. Even though they had agreed on occasions one and two, there was still a fundamental breach of contract, as the employee's contract did not require them to carry out this work.

Duh. And this will be a very useful case reference if the OP happens to work in Mauritius. A ruling of the Privy Council is an exception ruling for a former colony! It has nothing at all to do with British law.

And the OP has never refused to carry out work anyway - so not the slightest similarity, even if it were a British case!

In relation to redundancy, employers do not have carte blanche to select or omit someone from the pool eg because their face doesn't fit. There has to be objective criteria and the same has to be documented in a clear chronological paper trail, when deciding upon the pool of potential redundant roles. Otherwise they're open to challenge and being sued in the County Court for breach of contract.I didn't suggest that they did. But I do not have any information pertinent to an opinion on such a matter because the OP has not posted any explanations. So neither do you have that information. That is why I asked the OP questions about the process. But since they are not even being made redundant, but TUPE'd, then this is entirely irrelevant to anything, and a County Court would be the wrong court to bring a claim; and breach of contract would be the wrong claim to bring. A TUPE is not a breach of contract.


Consequential losses can be actionable eg if an employer dismisses someone a month before a bonus is due to avoid paying it. Pension rights/accruals are more complex and there's an ongoing case at the moment which may aid you when Judgment is eventually handed down.Does this have anything at all to do with anything the OP has said? They are not being dismissed. They are being TUPE'd. They will continue to be in employment.


In the meantime, given your extensive level of service, I'd recommend you seek legal advice from an employment law solicitor. Some provide a free 30 minute consultation and then should provide you with an hourly rate of eg £150 for a written advice. Some barristers also now offer 'direct access' to the general public for an opinion in this area of law.

Getting legal advice, at least from someone who doesn't think Mauritius is part of the UK, is about the only thing I can agree with. But in the meantime, if the OP can provide information about what the employer says is the method used to select those in scope for TUPE, then there may be advice that some people can provide in the eman time.

Mersey_2

The Privy Council case is a British decision, although not sure why that matters - as a recent authority from a senior court it's relevant as current employment caselaw, as are decisions of the ECJ, both of which are cited in decisions of Tribunals, the County Court, High Court, and the Supreme Court in this Country on a weekly basis.


*The Privy Council heard and hears appeals from the British Commonwealth and English law is practised. Decisions of the PC, CA, HL (now SC) are more relevant than Scottish law to any OP or reader in England and Wales - as any 1st year law student would know, but obviously not sangie595.


Consequential losses was raised and I was also responding to your,


"almost nothing you have said will ever make a case" which is so dismissive to be otiose and almost negligent.


Whilst the OP has 'missed the boat' for an ET claim for constructive dismissal, it's vital to remember that unilateral changes are fundamental breaches and as such are actionable, so it's curious why you keep telling OPs all is woe and not to even consider anything.

sangie595

Mersey wrote: »

The Privy Council case is a British decision, although not sure why that matters - as a recent authority from a senior court it's relevant as current employment caselaw, as are decisions of the ECJ, both of which are cited in decisions of Tribunals, the County Court, High Court, and the Supreme Court in this Country on a weekly basis.


*The Privy Council heard and hears appeals from the British Commonwealth and English law is practised. Decisions of the PC, CA, HL (now SC) are more relevant than Scottish law to any OP or reader in England and Wales - as any 1st year law student would know, but obviously not sangie595.


Consequential losses was raised and I was also responding to your,


"almost nothing you have said will ever make a case" which is so dismissive to be otiose and almost negligent.


Whilst the OP has 'missed the boat' for an ET claim for constructive dismissal, it's vital to remember that unilateral changes are fundamental breaches and as such are actionable, so it's curious why you keep telling OPs all is woe and not to even consider anything.

It is relevant because the law upon which they are deciding is Mauritian employment law and therefore has no relevance in the UK. They cannot determine a Mauritian case based on British law. Indeed, if you had read the decision then you would know they actually said that in the judgement. The Privy Council's relevance in the UK is largely related to matters of devolution as far as the general population is concerned.

I am amazed any first year law student would be so deluded as to consider that rulings of the Privy Council in relation to foreign law have relevance to the interpretation of UK employment law, but I had heard that standards are slipping.

Beyond that the only point I will refer to in your wildly "optimistic" post about what you think the law says is that I did not say that there was nothing the OP could do. I said there was nothing they could do about the things they were raising in the post. I then went on to explain what things they MIGHT be able to do something about, and for which more information would be needed to provide actual advice.

The OP is able to make their own decisions as to whether they really believe that they can claim losses based on your advice, or whether to provide information which may open up more realistic avenues of action.

sangie595

Oops sorry, I must correct that last post. I understood that the Privy Council had responsibility for devolution legislation - on checking that they were stripped of that power in 2009 when the responsibility was transferred to the Supreme Court. So not even relevant on this issue now, except as historical decisions.

monkeydrum

Thank you both for your replies so far

sangie595 - While I understand that they may not have actually broken the law at any stage, my point is that this is a huge global company and morally what they have done to me in recent years is unfair. The first major point which is absent in my summary is when they initially offered me a new role (during the TUPE in 2011) I actually turned it down as I did not feel it was suitable. I was then told that they were offering me a more senior role, which I accepted. Months and months went by without any interaction with my new manager in my new role. I kept complaining about this and raising the issue, but to no avail. Approximately 13 months later, they simply shifted me in to the role which I initially turned down previously! Consequently, it was too late to return to my default role as the position had been back-filled. The only option I was given was to simply put up with it or leave the company. I understand that it's very difficult for me to paint a clear picture on here, and all the information I provided in my opening post is an extremely short summary. BUT, in my defence, ever since the TUPE in 2011 I have kept absolutely everything documented. And I mean everything. Every time I contacted my manager asking why I was not receiving any work in my new position. All of my correspondance with HR raising all of these issues over a 2 year period, etc etc etc. Nobody could say I have not raised all of my concerns multiple times. I have 13 pages worth of evidence which, to be fair, does not reflect well on a large corporation who advocate having good values

If you need any more info, please let me know. I don't mind removing personal info from my evidence and sharing it, I just didn't want to upload too much information upfront!

Thanks

Mersey_2

sangie595 wrote: »

It is relevant because the law upon which they are deciding is Mauritian employment law and therefore has no relevance in the UK. They cannot determine a Mauritian case based on British law. Indeed, if you had read the decision then you would know they actually said that in the judgement. The Privy Council's relevance in the UK is largely related to matters of devolution as far as the general population is concerned.

I am amazed any first year law student would be so deluded as to consider that rulings of the Privy Council in relation to foreign law have relevance to the interpretation of UK employment law, but I had heard that standards are slipping.

Beyond that the only point I will refer to in your wildly "optimistic" post about what you think the law says is that I did not say that there was nothing the OP could do. I said there was nothing they could do about the things they were raising in the post. I then went on to explain what things they MIGHT be able to do something about, and for which more information would be needed to provide actual advice.

The OP is able to make their own decisions as to whether they really believe that they can claim losses based on your advice, or whether to provide information which may open up more realistic avenues of action.

I'll repeat it, as you (sangie595) have either singularly failed to - or refused to - understand that decisions of higher Courts including foreign jurisdictions (although this was not one as the PC sits here not abroad) are indeed cited as authorities in this Country in Tribunals and County Courts on a weekly basis.


I'm a solicitor of over 10 years' litigation experience and whilst my specialism is counter fraud rather than employment, this case was cited in a CPD seminar last year as current law. It's also still listed on national law firms' HR briefings as a warning to employers to be careful how they act and interpret the law. The principle remains unilateral changes are fundamental breaches and an employee can refuse an act not in their job role further down the line and be protected.


It's good to hear you now think the OP might have a potential grievance. I merely quoted what you actually said in your overly dismissive reply, above: "almost nothing you have said will ever make a case."


--


monkeydrum - yes, definitely seek advice from an employment law practitioner. It's excellent that you have a full, chronological paper trail. It's something that many HR departments do not. An employee's contract - especially their job role - can't be changed unilaterally by an employer. In almost all circumstances this is breach of contract. [Of course, this doesn't equal that everyone should issue proceedings, as it's sadly an all too common occurrence; but, it often helps in any bargaining position situation, to point out breaches to an HR dept or Director and a brief, polite letter can often work wonders. Any firm specialising in employment law will be able to advise you more fully on your prospects and options]

sangie595

Mersey wrote: »

I'll repeat it, as you (sangie595) have either singularly failed to - or refused to - understand that decisions of higher Courts including foreign jurisdictions (although this was not one as the PC sits here not abroad) are indeed cited as authorities in this Country in Tribunals and County Courts on a weekly basis.


I'm a solicitor of over 10 years' litigation experience and whilst my specialism is counter fraud rather than employment, this case was cited in a CPD seminar last year as current law. It's also still listed on national law firms' HR briefings as a warning to employers to be careful how they act and interpret the law. The principle remains unilateral changes are fundamental breaches and an employee can refuse an act not in their job role further down the line and be protected.


It's good to hear you now think the OP might have a potential grievance. I merely quoted what you actually said in your overly dismissive reply, above: "almost nothing you have said will ever make a case."


--


monkeydrum - yes, definitely seek advice from an employment law practitioner. It's excellent that you have a full, chronological paper trail. It's something that many HR departments do not. An employee's contract - especially their job role - can't be changed unilaterally by an employer. In almost all circumstances this is breach of contract. [Of course, this doesn't equal that everyone should issue proceedings, as it's sadly an all too common occurrence; but, it often helps in any bargaining position situation, to point out breaches to an HR dept or Director and a brief, polite letter can often work wonders. Any firm specialising in employment law will be able to advise you more fully on your prospects and options]

I really don't care what you claim to be, you are not correct, and I won't be arguing any longer about employment law in Mauritius. The OP can listen to any advice and decide for themselves.

sangie595

monkeydrum wrote: »

Thank you both for your replies so far

sangie595 - While I understand that they may not have actually broken the law at any stage, my point is that this is a huge global company and morally what they have done to me in recent years is unfair. The first major point which is absent in my summary is when they initially offered me a new role (during the TUPE in 2011) I actually turned it down as I did not feel it was suitable. I was then told that they were offering me a more senior role, which I accepted. Months and months went by without any interaction with my new manager in my new role. I kept complaining about this and raising the issue, but to no avail. Approximately 13 months later, they simply shifted me in to the role which I initially turned down previously! Consequently, it was too late to return to my default role as the position had been back-filled. The only option I was given was to simply put up with it or leave the company. I understand that it's very difficult for me to paint a clear picture on here, and all the information I provided in my opening post is an extremely short summary. BUT, in my defence, ever since the TUPE in 2011 I have kept absolutely everything documented. And I mean everything. Every time I contacted my manager asking why I was not receiving any work in my new position. All of my correspondance with HR raising all of these issues over a 2 year period, etc etc etc. Nobody could say I have not raised all of my concerns multiple times. I have 13 pages worth of evidence which, to be fair, does not reflect well on a large corporation who advocate having good values

If you need any more info, please let me know. I don't mind removing personal info from my evidence and sharing it, I just didn't want to upload too much information upfront!

Thanks

Unfortunately, things that are morally wrong do not count, and they are unlikely to care how it reflects on them because it will be a footnote that nobody will ever read. That's the simple truth. Keeping a record of your correspondence is not enough - Where are the grievances? Where are the refusals to change jobs? You have summed it up nicely yourself - the option given was do it or leave the company. And you did it. You could have chosen the "leave the company and bring a legal action" at that time, but you didn't. And I am not suggesting that you should have, because in this country that kind of legal action is exceedingly unlikely to win.


Your issue is this bit here
"The bottom line is, I fully appreciate they are entitled to TUPE me across without the pension being honoured, but there are a few outstanding questions i.e. Are they allowed to make 2 members of my team redundant without putting us all at risk? Are they allowed to cherry pick 2 members of my team for TUPE whilst the other 3 (with a much shorter service record) remain unaffected?

This is what may make something, but not on this level of information. Setting aside length of service, which is your guess about reasoning, you need the employer to answer these questions formally. Because they are the crux of the matter. There are reasons why these actions may be entirely fair, but I can't call it either way without that explanation. And neither can anyone else, including a lawyer.