Is this legal?

Siren1

Hi all, my company is downsizing my department from 3 people to 2, the 3 job titles are now redundant and instead, 2 new job titles have been created, which are a combination of all 3 roles.


We have all been invited to apply for the 2 roles, but one of the guys is a temp, and the other 2 (myself and my colleague) are permanent staff. In my experience, it is usually the contractor / temp that is to leave, rather than lay off permanent staff. Is this legal?


Also, the company is interviewing external candidates, I have tried to find a recruitment policy, to see what their stance is on recruiting internally, but cannot find anything - should my company have this?


Thanks in advance for advice.

DomRavioli

Temps who have been working at their place of employment for 12 weeks or more have the same rights as permenant staff in some instances.

Perhaps read up on the law that came into force a couple of years ago.

sangie595

That only applies if the employee is an agency worker. There is no clear indication whether that is the case or not, but in fact if they were an agency worker, then they would not have the same rights as employees in relation to a redundancy situation because they are not even employed by the company.

I am assuming that this temporary worker is not an agency worker, but directly employed. In which case the employer is at liberty to treat them as they wish until they have two years employment. So they can include them in a redundancy exercise. Or they can terminate the contract. Temporary and permanent are really red herrings as descriptors - length of service is more important. But in this case, is it legal - yes it is.

I am unclear what the company is interviewing external candidates for, or why. You will have to explain this better. Are you saying that there are suitable alternative positions in the company that you could do?

Siren1

sangie595 wrote: »

That only applies if the employee is an agency worker. There is no clear indication whether that is the case or not, but in fact if they were an agency worker, then they would not have the same rights as employees in relation to a redundancy situation because they are not even employed by the company.

I am assuming that this temporary worker is not an agency worker, but directly employed. In which case the employer is at liberty to treat them as they wish until they have two years employment. So they can include them in a redundancy exercise. Or they can terminate the contract. Temporary and permanent are really red herrings as descriptors - length of service is more important. But in this case, is it legal - yes it is.

I am unclear what the company is interviewing external candidates for, or why. You will have to explain this better. Are you saying that there are suitable alternative positions in the company that you could do?

Sangie595


The temp is an agency worker, he is not directly employed by the company. As for interviewing externally, the 2 roles have that have been created, are the ones that they have invited external applicants to apply. Their explanation is, that, they want the best candidates for the roles. There are no alternative positions within the company, just these 2, and I have the experience and knowledge to do both.


In cases like this, I always thought each company was legally obliged to recruit internally, especially since our consultation letters state that they are keen to avoid redundancies.

sangie595

It isn't that simple. It never is.

With regards to an agency worker, there can be a lot of business reasons why they might decide to retain an agency worker (primary of which is that you can terminate their work quickly and without cost). You would need to ask the employer (in writing, always do it in writing) why they are retaining an agency worker or proposing to when there are redundancies amongst staff doing the same work.

The new jobs are more complicated. If they are suitable alternative employment (which only a tribunal can determine) then yes, employees at risk should be slotted into those. But if the jobs are sufficiently different, then the employer can say that they are not suitable alternatives, simply jobs that you can apply for if you wish. How different are the jobs (especially pay and terms)? If you are claiming that they are suitable alternatives, then you must again state that claim in writing.

You might also want to bear in mind that the company have decided to do this. I think that it's a relatively heavy hint that they are not very attached to you, and your continued employment is based on whether there is nobody better for the role. Whatever happens, in your shoes I would not be feeling secure; and I might want to find a more appreciative employer as soon as possible.

It did strike me the first time around, but I didn't say it, that my instinct would be to assume that the agency worker has one of the new jobs. It is the most likely reason for approaching the situation this way.

getmore4less

Have they made any indication that if you don't apply you are resigning?

undaunted

I'd tend to agree with Sangie595 - IE either the temp. has already got one of those two jobs & it's just a matter of which of you is going to get the other one OR, if that isn't the case none of you are really in favour!




Can we assume that the two of you haven't been there long enough for getting rid of either you to become expensive?


Either way it may be time to start looking for a new job as a matter of urgency - if they were keen to keep you I think you'd know, whatever processes they felt the need to go through

Siren1

Hi getmore4less, no, nothing like that has been mentioned.

Smodlet

Is there any possibility these new roles could be zero hours contracts? If so, could that explain why they want to recruit new people who will not complain at their reduction in circumstances? Is it possible the company is on its way down the pan and they want to change permanent roles to temporary ones to avoid issues down the line?

Perhaps they are just trying to find a way to cut costs by losing one of the positions and changing the others just enough they can claim they are new roles and therefore advertise them outside, possibly at lower salaries? Or, perhaps they feel neither you nor your colleague will be able to take on the new, presumably more demanding roles as, from what you say, you would be doing your own job plus half of someone else's. You do not give much information. Have you seen JD's of the new roles?

I hate to depress you and wish you all the best but, the way things are these days, loyalty to employees seems a thing of the past, if it ever existed. I would definitely be spending every spare minute looking for another job and, once I found one, continue to do so, just in case.

I hope everything works out for you and your colleague.

srisport

Siren1 wrote: »

......., my company is downsizing my department from 3 people to 2, the 3 job titles are now redundant and instead, 2 new job titles have been created, ......

We have all been invited to apply for the 2 roles,.......

A few years ago the company I work for also downsized the man power in our department and we went from 18 staff down to 11. When the redundancies were announced, they confirmed that all positions were being re-named but responsibilities for these positions would be similar.
They did not advertise Externally or Internally for these new positions but instead offered staff the opportunity to apply for voluntary redundancy, luckily 7 staff applied and the remaining staff were placed into these new positions. We were told that if the company did not receive 7 applicants for voluntary redundancy then the jobs would be advertised internally.


The fact that your company are not following a similar path as mine did is very worrying on your part as surely your experience and knowledge out weighs any new recruits? Is your job considered skilled or unskilled just out of interest?

Smodlet wrote:

hate to depress you and wish you all the best but, the way things are these days, loyalty to employees seems a thing of the past, if it ever existed. I would definitely be spending every spare minute looking for another job and, once I found one, continue to do so, just in case.

I disagree, any good manager would surely always keep experienced staff over employing un-experienced staff?(depending on industry)


After the company I work for completed its reorganizational phase, I decided to leave 8 months later to go back into full time education, I left because I did not agree to the companies new approach to staffing levels or their new business approach (plus a bunch of other reasons too) and I made it clear to management I was not happy. We too also employed temporary staff at the time and one of them took my position once I left. The company then offered me the temporary position because they appreciated my knowledge and experience that I had and find it more beneficial to still have me on the books than relying on un-experienced staff cover.


Long story short, if a company aren't willing to go out their way to keep you then your either crap at your job or the companies management haven't got a bloody clue how to run a successful business!