Redundancy, Voluntary Termination and Demotion

[Wylderose]

Hello, I am looking for some advice and I hope someone here has some specialised knowledge in employment law.

Beginning of June we were informed that the council where I work was restructuring and an employment consultation was started. My department was subsequently singled out for special consultation. We were initially told in the months leading up to this that there would be no redundancies, Then calls went out for expressions of interest in Voluntary Termination and we were informed that there was only a 3 week window of opportunity for this and the opportunity would end at the end of June. (someone was doing a Sales pitch maybe)

On Tuesday of this week, an hour prior to the meeting to discuss the finalised structure for the department, i was contacted by HR and informed that I had ben Post Deleted. I was informed that there might be a position within the structure for me but that it would be without responsibility or management, working alongside the people that I was managing, (I work in a senior position) so in effect I would be demoted. I expressed my concern and was then informed that there may be another position within the council.

To date I don't know what my options are as I am waiting for a formal 1-2-1 with HR and my Union rep:

I have only been with this council for a year, but do have 7 years continuous government service. In this year it has taken a long time to get one member of staff to accept me in my role so, I am reluctant to take a job as a demotion as a result of restructure/redundancy because it is insulting and demeaning and to be honest I think it will have a detrimental effect on the working relationship that I have built up with my team.

My understanding from looking through the web is that because they would be demoting me, I may still be entitled to redundancy for the position that I am being demoted from even if they find me another position within the council.

If I am given no option but to take a junior position or one without any degree of responsibility, would I be able to use being demoted and the way that this has/is making me feel and the potential impact on my working relationship with other members of the team as good cause and reason for refusal of the position without risking loss of my redundancy settlement?

There is nothing in my employment contract, job description or statement of particulars that makes provision for demotion or demotion under terms of restructure, so would enforcement of such a condition be grounds for constructive dismissal?

I don't know which way to turn

Thank you

[Wylderose]

Sorry I forgot - I have too much going on in my head

I found out in March that I was being paid contrary to the Equalities Act in that my counterpart in Revenues (male) with the same job description and duties (equal in all respects) was being paid at a higher grading than I am. I raised this with my line manager and prepared a case for appeal of my grading and then the question of the restructure came about, so i was advised to hang fire because in all likelihood this would be addressed.

I spoke to the CEO at the council who stated that he was aware of the disparity in the two salaries and that not to worry it would be addressed shortly. Well Job Deletion was the way they addressed the situation.

I therefore do not know if my raising the disparity in salaries was a leading factor in my job deletion or selection. I cannot get a straight answer.

I have by the way two letters of employment. One was issued when i joined the council at the same grading as my Revenues counterpart and the other was issued 6 weeks later with a request that I sign the amended contract because they made a Typing error and this is at the lower pay grade. When this was done I was on a 6 month's trial period and left with the impression that if I did not sign it I would would not pass my probation period.

[ULA]

Can I firstly ask you clarification on the point "I have only been with this council for a year, but do have 7 years continuous government service". Is the start date on your contract of employment from when you joined them a year ago or have they acknowledged the previous 7 years in government service as part of any continuous service.

[Wylderose]

Hi Ula,

I have 7 years continuous service with 2 councils. Yes they have acknowledged my service as being continuous in my statement of particulars

With local government when you change from one council to another, provided your employment with one ends and there is no break between termination and start dates your service is considered to be continuous,

[ULA]

Thank you for that I was trying to ensure that the 7 years was recognised as continuous service and you therefore had the qualifying service to be covered by employment rights.

You say that there is nothing in your contract regarding demotion under a restructure, however can I just check do to you have any clause giving your employer the right to vary your terms and conditions without your consent?

Legislation recognises that organisation have to evolve and this is often carried out via a restructuring exercise which of itself is not illegal and demotion within the new structure can be seen as an alternative to redundancy and under a redundancy consultation process should be offered. Where the demotion forms part of a wider restructuring programme, which includes a redundancy process, then there are potentially several options:
1. You agree to the new terms for the offered demoted position.
2. You may be entitled to redundancy payments for the termination of your original employment contract.
3. If the council offered you another position on the same terms, salary etc maybe with altered responsibilities they may be entitled to say that this was a suitable alternative and therefore redundancy is not an option.

I appreciate this is a stressful time but I would, in regard to the restructuring, see what happens at the 1-2-1 meeting that should happen with you. This may help give you a better understanding of the options open to you and also give you the opportunity to raise your concerns more fully about the only alternative they have offered currently.

Whether or not you raising the issue of pay inequality has had any bearing on the restructuring, I would hope that this is not the case. They should be treated as separate issues by the council in my view.

When you were asked to sign the second contract did you raise a query either in writing or verbally regarding the "typo" error or the pressure you felt on your successful completion of the probationary period if this was not signed? Was this pressure in writing or verbal?

Have you put anything formally in writing regarding the pay/grade disparity?

Was there any term in your contract about changes or review of grade/salary after completion of probationary period?

[Wylderose]

You say that there is nothing in your contract regarding demotion under a restructure, however can I just check do to you have any clause giving your employer the right to vary your terms and conditions without your consent? Was there any term in your contract about changes or review of grade/salary after completion of probationary period?

There is absolutely nothing in either my contract of employment or my statement of particulars that allows for variance of contract.

My terms and conditions of employment are covered by the Collective Local Agreement negotiated by (the employer) and UNISON (Trade Union) (known as the Single Status Agreement) and supplemented by the National Joint Council for Local Government Services National Agreement on Pay and Conditions (the Green Book). Any change in these terms and conditions will be notified to you and amended within one month.

Salary will be paid in accordance with Job Band H, spinal column points 24-28, commencing at spinal column point 24 £XXXXX per annum. An increment is payable on 1st April each year until the band maximum has been reached.

There is nothing about an incremental increase following the end of my probationary period

This is from my Job Description:

1. The Council reserves the right to vary the content of the job description, after consultation, to reflect the changes to the job without changing the general character of the post or level of responsibility.

This to me implies that if they wanted to change the aspects of my role, my job would need to be re-evaluated through consultation with the pay and employment panel and re-graded according to the Green Book. It does not give scope for changing the level of responsibility.

Whilst I appreciate that restructuring needs to happen, when a saving of over £1m is required and when as a department is being reduced from 12 members of staff to 9, for an employer to say that no-one will be made redundant does not appear to bear validity because if the jobs are not there then you cannot keep people in post because that does not deliver savings.

When you were asked to sign the second contract did you raise a query either in writing or verbally regarding the "typo" error or the pressure you felt on your successful completion of the probationary period if this was not signed? Was this pressure in writing or verbal?

I raised the issue verbally with my line manager, but Spinal column 24 at Grade H is the very bottom of that Grade which gives scope for pay increments over the years, whereas it is also the same salary as the very top of Spinal column 23 at Grade G and does not give any scope for pay increments. At the time I had no choice but to sign the amended contract. I only found out that I was being paid at a lesser grade some 7-8 months later but the fact that I was being paid at a salary grade equivalent to the team I was managing and well below my counterpart was well known by the team members. I was the last person to find out.

Have you put anything formally in writing regarding the pay/grade disparity?

I put together a comparison and of the two jobs to put into a business case for having my job re-evaluated just prior to my OKR in May 22. This was done at the suggestion of my line manager who suggested I take it up at a meeting with the Head of Service as he ultimately would need to raise this with the employment committee. However as things were breaking with the restructure and we were due to find out how it would affect us within a couple of weeks of my OKR, I was asked to hold on and see how things panned out.

I did discuss the disparity of earnings with the CEO in May. I also had the same discussion with HR in June and again today. Today I went into detail about how the two jobs, whilst not identical are substantially equal in the work done and how they are not different in any aspect apart from the fact that one of us has Revenues training and I have both Revenues and Benefits training. Therefore, whereas he would not be able to do my job, I could certainly do most aspects of his. I have stated that I would far rather have this addressed informally in line with the Equal Pay policy than have to take it to ACAS but that if not addressed correctly then going to ACAS is what I would be prepared to do.

I have now received a provisional appointment for a 1-2-1 for next week on Tuesday.

I have also been advised that one of the directors would like to have a Protected conversation with regards an offer under Voluntary Termination. I was also advised that she was not aware of the disparity in income. I have stated that I am agreeable to having a Protected Conversation as I understand that the issue of disparity of income falls outside of Protected conversation because of it being contrary to the Equalities Act 2010. If the council is seeking this sort of Protected conversation, they must realise what it would cost them in reputation and award if I was able to take my pay issue to ACAS

I was also advised that at this point in time there are no other positions that are considered suitable for my qualifications, but that anything can happen between now and September which is no consolation for me. Job descriptions and pay grades have been finalised but not circulated to staff and apparently nothing has been agreed with the union as yet as to who is selected for a position and who is not.

So I won't know much more until next week.

[ULA]

Many thanks for the the further information which is very helpful. Interesting that they have asked for a protected conversation which would be about an offer to leave the business, however that is all that should be about and should not include any discussion/remedy in regard to the equal pay claim you may have.

However a note of caution, any agreed outcome of a protected conversation to leave the council, may lead to the requirement for you to sign a Settlement Agreement (SA) which often has a clause covering the fact that you give up your right to bring any future claims against the council and they may try and cover off an equal pay claim in this. A requirement of signing an SA is that you take independent legal advice which the council would make a contribution towards, so the employment adviser would be able to provide advice about this aspect if it has not been resolved.

If you need any further help once you have had you meeting please just come back to this thread.