employment law - change of contract

the_reductionist

My contract is about to be changed and I have been told that I must apply for this new role. If I don't apply I will be considered to have resigned even though it is my employer who has terminated my existing contract. If I do apply I could be unsuccessful and then could be offered sessional work (effectively a zero hours contract).


So to sum up - change a contract in which they know I will not be able to satisfy the new role (days and locations), make me apply for this to avoid 'resigning' and then offer a non-permanent contract as crumbs from the table when I am unsuccessful.


After 20 years of service this seems unethical to me and a way of avoiding any redundancy payments and this from a local authority as well!


Do I have any rights regarding this situation?


Many thanks for any advice.

Undervalued

It is generally far easier than most people realise for an employer to unilaterally change an employee's contract.

The bottom line is that, if negotiations fail, your only remaining option is to resign and claim unfair dismissal. A tribunal will then decide if the changes were reasonable or not. Under these circumstances the claim would be for unfair dismissal and not constructive dismissal despite the resignation.

sangie595

Exactly why are you unable to satisfy the conditions of the new location and hours? Because that is the starting place for any possible action on your part.

Crazy_Jamie

the_reductionist wrote: »

My contract is about to be changed and I have been told that I must apply for this new role. If I don't apply I will be considered to have resigned even though it is my employer who has terminated my existing contract. If I do apply I could be unsuccessful and then could be offered sessional work (effectively a zero hours contract).

This approach by your employer is legally flawed. You cannot be 'considered to have resigned'. You have either unilaterally resigned or you have not. It's not something that can be forced upon you. If your old role is going to cease to exist it sounds like a redundancy situation, in which case there is a duty on your employer to find an alternative role for you. In the event that you are unsuccessful in applying for that role there is no onus on you to accept a role that is not a suitable alternative, and reading between the lines it does not sound like the sessional work would be a suitable alternative.

Incidentally, if there is a notable change in the days and locations of the role that you are being asked to apply for, that may not be a suitable alternative either, though the situation in that regard is very much fact specific and I can't provide any sort of other further advice in that regard without knowing more of the facts.

Ultimately my advice to you is to stand your ground at this stage. You seem to think that this process is going to end with your employment coming to an end, in which case even if your employer tells you that you have 'resigned', chances are legally they will have dismissed you. In that scenario the onus is on them in an unfair dismissal claim to demonstrate a fair reason for dismissal. Here it sounds like the most likely 'fair reason' is redundancy, in which case they would at least need to pay you a redundancy payment, though frankly if they've not labelled the process as a redundancy and have insisted that you have 'resigned', they may undermine their attempts to prove redundancy as the reason for your dismissal in any event.

Hopefully that helps you to some degree, but it's not a straightforward situation. If you can clarify the situation further I may be able to contribute more in terms of advice.

Undervalued wrote:

The bottom line is that, if negotiations fail, your only remaining option is to resign and claim unfair dismissal. A tribunal will then decide if the changes were reasonable or not. Under these circumstances the claim would be for unfair dismissal and not constructive dismissal despite the resignation.

Just so we're clear, if the OP actually does resign by writing a letter of resignation or similar, that would be a constructive dismissal scenario and not an unfair dismissal scenario. If he is told by his employer that he has 'resigned', either through not applying for a role or anything else, chances are legally he has been dismissed, which would be an unfair dismissal scenario. The difference between the two is who has brought the employment relationship to an end; if the OP physically resigns it will be he who brought the relationship to an end, and the appropriate claim would therefore be constructive dismissal even if he had good reasons for doing so.

Generally speaking, from the perspective of bringing a potential tribunal claim it is a good idea to wait to be pushed rather than jump, because in practice and in law constructive dismissal cases and unfair dismissal cases are very different.

the_reductionist

Many thanks for your thoughts and advice on this.


My current permanent contract is 0.4 as an Adult Education Tutor so effectively 2 working days per week although I always have a bit of in built flexibility and allow them to use me for 3 days Monday to Wednesday. This has worked well for many years until recently when courses have not run because of poor recruitment (down to poor management but that's another story). From their point of view when a course doesn't run it is a big cost although I try to fill my required hours with other duties if this happens. From my point of view I am available for work on the days agreed and the base agreed. There has been pressure for some time for permanent tutors to catch up on hours missed and for us to work on other 'non-employed' days but many of us have other jobs on the days we don't work for the service, after all I am only part-time 2 days a week.


In short, they would like us to be on call for the whole week and be ready to drive all over the county to make up our hours - this is the essence of the new contracts which are now going to switch to annualised hours so that we will have to meet our contracted hours as the service dictates. This is why it would be difficult for me to fulfil the new job requirements - I can't be available as required as I have other work commitments.


I asked the questions to my Senior Management Team and I copy the pertinent replies here:
do the annualised hours in the new contracts mean that I would be expected to catch up lost hours on other days (potentially when I am unavailable)? We need to be able to ensure that annualised hours contracts are fulfilled so flexibility would be required in terms of either travel to teach in other locations or working on alternative days. You would need to take this into consideration before applying for an annualised hours contract.
do I have to apply for this new role and if so and I didn't apply what would happen? My understanding with regard to your position if you fail to apply for any of the posts, is that by excluding yourself from the process, you are in effect resigning. This would impact on any redundancy payment you would otherwise have been eligible for should you go through the recruitment and selection process as required but then fail to secure a post in the new structure.


if I had to apply and wasn't successful what would happen? If you were unsuccessful in securing one of the new annualised hours contracts you would then be able to apply for sessional tutor contracts and if unsuccessful in securing suitable alternative teaching work you would then be placed into redeployment.


There seems to be a bit of a contradiction in the last two answers - a hint of a redundancy process but then talk of sessional (zero hours non-permanent contract) and redeployment?


I am particularly interested in CJ's comment about the resigning issue as this doesn't seem correct to me as I am happy to continue in my present role and it is the employer who is forcing change - also thanks for the distinction about constructive and unfair dismissal.


And yes, Undervalued you are right about employers unilaterally changing contracts - mine has been nibbled away at for several years and even very specific terms and conditions simply dropped when deemed disadvantageous. I suppose I had this naïve idea that contracts were joint affairs and couldn't be changed unless both parties agreed.


I am going to sit tight for a while but this is all supposed to happen within the next month or so - once again thanks for your comprehensive advice - I am considering my next move (if I even have one!)

sangie595

Given what you have said here, it would be my opinion that the posts are not suitable alternatives because the changes are too substantial, and that this is therefore a redundancy situation. However, in the final analysis, if the employer refuses to accept that, then it is the decision of an employment tribunal; and whilst I believe that you would have a strong case to argue, they can be perverse - so nobody could guarantee you an outcome you want.

That said, if you voluntarily apply for the jobs, then you are making them a suitable alternative by applying. It is certainly the case that where there is another suitable alternative post and you refuse it, or refuse to be considered for it, the employer can deem that a resignation and refuse redundancy - so it basically hinges on two things : (a) whether this will be deemed a suitable alternative, which is something you cannot be 100% sure of until a tribunal tells you the answer, and (b) whether the employer really believes and is prepared to act on the opinion expressed in this answer (because I would be surprised if they were - but some are bloody minded and may well do so).

That said, this is a local authority, and having no existing job is also a long way off being redundant. They have, and must use, their redeployment process. The law requires an employer to avoid redundancy wherever possible, and it is entirely within the bounds of possibility that you could be put into the redeployment pool and then redeployed into a non-teaching position. Suitable alternative employment does not mean the same sort of work - it can mean any work of which you are capable and which has broadly comparable terms, although what that means has been significantly eroded in the last six years. Now that may actually be a preferable scenario than losing your income, or maybe not.

What they would be doing though, if it came to it, is forcing you to make a tribunal claim (which, of course, now costs money, and you are unlikely to get costs awarded as tribunals tend not to do so). Given your length of service, the chances are that the redundancy payment would cover this and more, so it would probably be worth doing - but it would be your risk, obviously. Some will bet on you not taking that risk.

I suppose it is too much to ask that you are a member of a union?

Crazy_Jamie

Sangie raises a number of useful and practical points. The fact is that even if you are in a strong position legally, your employer can still stand its ground and force you down the Tribunal route. Now in fairness the Tribunal is a much more efficient process that claims in the County Court, but it is still litigation, it still takes time and resources to run a claim, and it is still stressful. It is important to note that for all of our talk about the rights and wrongs on the situation, the fact is that unless your employer concedes certain points you have to appreciate that you may still have to bring a Tribunal claim to get what you are entitled to.

For what it's worth, I entirely agree with sangie's assessment that this does not look like a suitable alternative role. To my mind, refusal of such a role is highly unlikely to be considered unreasonable. I would also be surprised if your employer sticks to its guns both in its approach and legal assessment in this regard, because it is quite simply flawed, but again sangie is right in saying that some employers do just take up unreasonable positions.

I don't think there's anything more that I can usefully add that's not already been touched upon, but I do just want to clarify two points from sangie's post:

sangie595 wrote:

It is certainly the case that where there is another suitable alternative post and you refuse it, or refuse to be considered for it, the employer can deem that a resignation and refuse redundancy

Just so we're clear, even though your employer seems determined to deem this a resignation, it is not a resignation in law. At law it is still a dismissal. So you wouldn't have to bring a claim for constructive dismissal just because your employer thinks that you have resigned; it would still be a claim either for unfair dismissal or a claim for a redundancy payment.

sangie595 wrote:

What they would be doing though, if it came to it, is forcing you to make a tribunal claim (which, of course, now costs money, and you are unlikely to get costs awarded as tribunals tend not to do so).

This is correct as a general rule, but not correct when it comes to Tribunal fees. Rule 76(4) of the Employment Tribunal Rules of Procedure provides an exception to the usual circumstances under which a costs order can be made and allows Tribunals to make an order that the Respondent pays the Claimant's tribunal fees where the Claimant to partly or wholly successful, and indeed in the vast majority of cases Tribunals do now order the losing employer to reimburse the Claimant for the Tribunal fees that they have paid. So if you did win, you would probably get the fees back that you had paid.