Help - can they do this?

[Angrylecturer]

I am working at a university as a lecturer with a permanent contract. I have completed my probation and that and all PDR reviews have been excellent. I have just been told that when I was appointed the job should have been made available for someone else to apply for. HR now say that they have taken legal advice and that person is now able to apply for my post and that my post may become redundant if he is successful in his application. The person concerned has a grievance with the university. Can they do this to me legally when I have been appointed and occupy the post? It feels as if they are protecting his rights and sacrificing mine. Any comments would be welcome. Thank you

[Kati]

Re: Help - can they do this?

@teaboy2 [MENTION=48758]stevemLS[/MENTION] ... one for you maybe??

[stevemLS]

Re: Help - can they do this?

Your post implies that you have only been employed a short time, how long is it since you were appointed.

The sad fact is that if it is less than two years, your employer can terminate your employment for any reason or none, provided it is not based on discrimination for one of the protected characteristics (race, sex etc).

Without that length of service, you are unable to bring a claim for unfair dismissal.

It is a shabby way to treat someone though.

Equally it is wrong to say that your post would be redundant, there is still a need for the role, it's just that some other bugger is doing it.

I can see that the employer might think themselves to be between a rock and a hard place if they have received legal advice that the other person should have been able to apply - is it someone returning from maternity leave or something.

At the very least, in my view, you should be given the opportunity to compete for the post.

Whilst you have few rights (assuming <2 years service it is clear that your employer has royally screwed up, that might strengthen your hand in trying to negotiate an exit package.

[teaboy2]

Re: Help - can they do this?

What was the other persons grievance?

[Angrylecturer]

Re: Help - can they do this?

Your post implies that you have only been employed a short time, how long is it since you were appointed.

The sad fact is that if it is less than two years, your employer can terminate your employment for any reason or none, provided it is not based on discrimination for one of the protected characteristics (race, sex etc).

Without that length of service, you are unable to bring a claim for unfair dismissal.

It is a shabby way to treat someone though.

Equally it is wrong to say that your post would be redundant, there is still a need for the role, it's just that some other bugger is doing it.

I can see that the employer might think themselves to be between a rock and a hard place if they have received legal advice that the other person should have been able to apply - is it someone returning from maternity leave or something.

At the very least, in my view, you should be given the opportunity to compete for the post.

Whilst you have few rights (assuming <2 years service it is clear that your employer has royally screwed up, that might strengthen your hand in trying to negotiate an exit package.

Thank you for such a quick reply. I don't really know my status. The current employer took over the institution I had worked for for more than 20 years. 18 months ago I received a contract from the new employer. I also recently received a long service award from the current employer recognising 25 years of service - so I assumed this was seen as continuity of employment. The other person applied for other jobs that he didn't get and has been working part time for the organisation in the meantime, but is now claiming he should have been invited to apply for my post. For most of the period he has been on sick leave. They did mention in the letter that my post might be made redundant and that puzzled me as I couldn't see how he could have the opportunity to apply for a post if it's redundant. Also, I am on annual leave and not in the country, so I am not able to have discussions and take advice - although I do have the opportunity to apply for the post. Can they do this when I am on annual leave and entitled to be out of contact? Thank you so much for your help. Any further guidance would be much appreciated.

[FlamingParrot]

Re: Help - can they do this?

Thank you for such a quick reply. I don't really know my status. The current employer took over the institution I had worked for for more than 20 years. 18 months ago I received a contract from the new employer. I also recently received a long service award from the current employer recognising 25 years of service - so I assumed this was seen as continuity of employment. The other person applied for other jobs that he didn't get and has been working part time for the organisation in the meantime, but is now claiming he should have been invited to apply for my post. For most of the period he has been on sick leave. They did mention in the letter that my post might be made redundant and that puzzled me as I couldn't see how he could have the opportunity to apply for a post if it's redundant. Also, I am on annual leave and not in the country, so I am not able to have discussions and take advice - although I do have the opportunity to apply for the post. Can they do this when I am on annual leave and entitled to be out of contact? Thank you so much for your help. Any further guidance would be much appreciated.

It sounds like your employment would have been protected under TUPE. TUPE stands for The Transfer of Undertakings (Protection of Employment) Regulations 2006. TUPE applies whenever there is a relevant transfer of business and it sounds like this was the case here ("business" doesn't necessarily mean it has to involve a profit-making enterprise). Existing employees have a right to be transferred to the new employer under their existing terms and conditions of employment, with a few exceptions.

You should have been informed of the transfer and how it would affect your employment. Even if you were not told you were being transferred under TUPE to the new employer and you were given a new employment contract, that does not mean you do not have rights under TUPE. It looks to me as if you should have continuity of service for 25 years despite the new 18 month old contract. I've been dealing with a similar situation.

[stevemLS]

Re: Help - can they do this?

Agree with Parrot. The Regs apply to "undertakings" or "businesses" - a college is most certainly an "undertaking" and may be a business within the meaning of the Regs.

In which case, IMHO if they have entered into a contract with you they cannot rescind that on the basis that the have cocked up elsewhere and if they attempted to dismiss you on that basis it would be an unfair dismissal.

Talk of redundancy is plainly nonsense given that they are readvertising the position.

The fact that you are on leave doesn't stop them going about their business, but any matter directly affecting your employment must, acting reasonably, be paused to enable them to act in a fair and reasonable fashion.

How long are you away for?

Are you able to post up as much f the letter as possible without identifying yourself or your employer? If you are worried that you can't do so without identification you could PM it to me or email it to admin@legalbeagles.co.uk (would someone confirm that is correct please) and we can try and help you draft a response.

[Angrylecturer]

Re: Help - can they do this?

It sounds like your employment would have been protected under TUPE. TUPE stands for The Transfer of Undertakings (Protection of Employment) Regulations 2006. TUPE applies whenever there is a relevant transfer of business and it sounds like this was the case here ("business" doesn't necessarily mean it has to involve a profit-making enterprise). Existing employees have a right to be transferred to the new employer under their existing terms and conditions of employment, with a few exceptions.

You should have been informed of the transfer and how it would affect your employment. Even if you were not told you were being transferred under TUPE to the new employer and you were given a new employment contract, that does not mean you do not have rights under TUPE. It looks to me as if you should have continuity of service for 25 years despite the new 18 month old contract. I've been dealing with a similar situation.

Thank you very much. That's really helpful

[Angrylecturer]

Re: Help - can they do this?

Thank you very much. That makes sense to me. I'm nervous about sending any of the letter as I'm sure I would get instant dismissal if that were ever found out. That gives me the confidence to fight this. Thank you again.

[Amethyst]

Re: Help - can they do this?

r email it to admin@legalbeagles.co.uk (would someone confirm that is correct please) and we can try and help you draft a response.

Yes that's correct and I can pass it on to you. Considering the sensitivity I do think email is the best way to deal with this in more depth if needed.

[Kati]

Re: Help - can they do this?

I'm nervous about sending any of the letter as I'm sure I would get instant dismissal if that were ever found out. That gives me the confidence to fight this. Thank you again.

I can vouch for Amethyst ... your sending anything via email to her ( admin@legalbeagles.info ) would be 100% safe. None of your personal details would be passed on to anyone and she would ensure you were not in a position to be "found out" !!

[Angrylecturer]

Re: Help - can they do this?

So sorry. I didn't mean to imply lack of trust. And I'm embarrassed if I have created that impression. I'm just concerned that if someone read this thread they might be able to identify me from the strange nature of the case, so I want to make it clear that I'm not passing on confidential documents. Thank you

[Kati]

Re: Help - can they do this?

So sorry. I didn't mean to imply lack of trust. And I'm embarrassed if I have created that impression. I'm just concerned that if someone read this thread they might be able to identify me from the strange nature of the case, so I want to make it clear that I'm not passing on confidential documents. Thank you

no worries there is nothing for you to be embarassed about!!
K x

[FlamingParrot]

Re: Help - can they do this?

Thank you very much. That makes sense to me. I'm nervous about sending any of the letter as I'm sure I would get instant dismissal if that were ever found out. That gives me the confidence to fight this. Thank you again.

I have no idea what the letter refers to but seeking legal advice about your rights is not a cause for dismissal. It would be if you were sharing confidential information with unauthorised parties, however, a letter sent to you about your employment situation is yours to show to others in terms of assessing your situation. I'm not saying it should be posted up publicly in full, however, you would be allowed to disclose it to a solicitor or advisor at a place such as a law centre or the CAB so there's no reason you couldn't send it to Kati or Amethyst.

While they can dismiss you quite easily with 18 months service, that's not the case with 25 years and I'm surprised an academic institution should have completely overlooked the TUPE issue, you would expect that from small business owners who think they know everything and don't get proper advice, but not from a college. If you were dismissed or 'made redundant' at this stage, the respondent could argue you do not have enough length of service to bring a claim, however, you should be able to argue continuity of service and the ET would have to hold a preliminary hearing to establish continuity and TUPE is not something that can be easily dismissed or overlooked, it will be looked at in great detail, you can be sure of that.

As a matter of interest, do you belong to a union by any chance?

[FlamingParrot]

Re: Help - can they do this?

So sorry. I didn't mean to imply lack of trust. And I'm embarrassed if I have created that impression. I'm just concerned that if someone read this thread they might be able to identify me from the strange nature of the case, so I want to make it clear that I'm not passing on confidential documents. Thank you

It isn't that strange, this isn't the first time an employer overlooks TUPE.

If you work for a large organisation, it is unlikely that they will trawl the forums, attempting to identify individuals, unless of course the people you work with were already aware of your presence on this forum, for example, if you had recommended it to them.