Company restructuring, contract and redundancy

[lewlew]

Hello all, I will try to be as concise as possible with this.

My employer- a large retail chain- is restructuring its business, and has begun a consultation surrounding this and possible redundancy. The basis is, that we have to now select hours from a sheet for which we are available, and then if the shifts we have selected are available, these will form our new contracts. The basis for first pick and so forth, is based upon various metrics such as reviews, absence, attendance etc.

However, I have a further complication. I have worked for the company for 5 years, and Nearly 2 years ago I began a job as a manager in the store, I was initially told this was a temporary positiion whilst they made sure the company would allow the position to stay full time. However, I have looked back at my ‘amended’ contract letter and there is no mention of the position being temporary. Does this mean it is permanent or can I argue so? They are therefore telling me that I may lose my management position, and so I have to pick 28 hours (instead of 38 hours as I do now) as that was the amount of hours I was contracted to previously. They’re essentially arguing that I am a permanent member of staff on a current temporary contract, is this possible?

What I would like to know and have some advise on is the following please:
- generally, with the restructure, do I have any way to avoid it or fight it as to keep my hours and contract as it is? Or, can they force redundancy on this basis?
-if the amendment to the contract for my new job does not say temporary does this mean therefore it is permanent?
-if so, then I can argue that if my current position is in limbo, I should be able to select 38 hours instead of the old 28
-is there anything else I can do or any employment rights I have with regards to this?

any help or advice you can give me would be really appreciated.

TIA.

[ULA]

You mention an amended contract letter does this confirm your new role as Store Manager and any associated changes to terms and conditions as a result of this change in job? Did they indicate how long it may have temporary status? Was there ever any documentation to you explaining that this was potentially only a temporary position? Did your amended contract state what would job title and terms and conditions you would revert back to if the positions could not be confirmed as being permanently available.

In answer to your questions:

1. A company is entitled to be able to restructure it business to adapt to changing market conditions but they need to follow a fair process to implement significant changes to your terms and conditions of employment so they need to consult and agree these with you. Ultimately if they cannot agree changes since they have alerted to a possibility of considering redundancies this may come about if they cannot make the restructuring changes.
2. I need to have a response to my above questions before I answer this question
3. Before I can determine whether you can argue this I need the answers to the above questions.
4. You cannot stop your employer trying to make the changes, however it will be the process that they undertake to manage this change that may provide some protection.

[lewlew]

Hi Ula,

Thank you very much for taking the time to reply.

I will provide brief details of the new contract below:

’’I would like to confirm your changes in terms as condictions as effective from 24 September 2017 in the position of Coordinator

This letter forms an amendment to your existing contract of employment

Salary
Hours of work- 38.75

ease sign below to accept the terms and conditions of your employment and confirm the details above are correct’’

This is the only thing I have in writing for my new position. They verbally did state- informally- that it would be temporary but in a few months it should be made permanent. At one point they even told me that they would do it, but clearly they haven’t. As you can also see they don’t state what it would revert back to, but it also makes no mention of the job being temporary.

Your further advise would be appreciated!

[ULA]

From the extract you have sent me it seems that they have not changed your job title it is still Coordinator but they have changed your hours which I presume was an increase up to 38.75, per week, reflective of a manager. What seems to be missing is any new contract confirming a change in title to Manager, which I presume would have been their next course of action to confirm the position becoming a permanent change.

Even given the lack of follow through on documentation as part of the restructuring it could be that this will have an effect on manager positions as well as general staff positions.

[lewlew]

Dear Ula,

Apologies for the delay in my response.

I should have clarified earlier, the title of Sales co-ordinator is the management position, prior to this I was a sales consultant. The amendment states that the title is therefore now the management position, and the hours are as follows.

Do you not think there is any legal basis to suggest that the amendment is permanent as it does not state otherwise?

On another note, they are now suggesting that they may not have the hours to fulfil the hours people are contracted. I mean, I have stated on the hours sheet that I am available for every hour possible, i.e. I have not given them any hours I can't do.
If they do not fulfil my contracted hours (old or new) and therefore do not give me 28 as per the contract, do I have any legal basis for a constructive dismissal claim? It seems they are trying to cut contracted hours down, and so does forcing me to cut my hours after the restructure constitute constructive dismissal if I leave or take redundancy instead?

I would appreciate your input.
Lew

[ULA]

Well based on what you have posted the amended contract effective from 24 Sept 2017 appears to change your title to the management role of Sales Co-ordinator. If this was a temporary situation as you were initially told, then in my opinion, this fact should have been stated with timescales given at which point the situation would be reviewed. Plus there should have been some confirmation that if the position did not become permanent what you would potentially revert back to so that everything was very clear.

That aside even if the company tried to argue the temporary nature of the position I would say that over 18 months down the line and still in the position would actually indicate that the move had in fact become permanent.

On your second point it is a bit hard to tell at the moment without any further detail. If your role no longer exists I am thinking that it may be a redundancy situation and the restructured job roles being offered are being done so on the basis of a suitable alternative position (SAP) then it will come down to whether it is in fact a SAP. However I will need to be clearer of the facts before providing more relevant guidance.