Unsure if I have a case for a grievane or constructive dismissal. Please help!

[bradder]

Apologies for the lengthy first post, but this date's back to 2011. My situation is as follows...

- In November 2011 I was TUPE'd to another part of my company (it's a large global firm, so it was an internal transfer to another subsidiary)
- During the TUPE, I was given the opportunity to stick with my default role or apply for a new role in a different team (this was due to my skills overlapping)
- I opted to go for the new role and was interviewed for a position. I was offered the job and accepted the new role
- Throughout 2012, I received no work or support from my new team leader/manager whatsoever, despite multiple attempts to contact him and raise the issue
- In February 2013 (15 months later) I suddenly find that my role and reporting line has changed dramatically without consultation. My duties and responsibilities were drastically reduced and I felt like I had effectively been demoted
- By this time, my original default role had been backfilled so I did not have the option to revert back
- During the same period, new members were joining my team in senior positions, but the roles were not advertised internally, so I was denied the opportunity to earn promotion
- Throughout 2013, I consulted with HR about all of these issues, unfortunately to no avail. I was basically told that the job I thought I had accepted actually no longer existed. My only option was to walk away

This is a very brief summary, but the bottom line is I feel I was misled and then consequently denied further opportunities because new roles were not advertised and were filled by new managers bringing in preferred new staff. With a little baby and a mortgage I wasn't in a position to simply walk away. So in a nutshell, I've been doing a watered down job I didn't actually accept for over 4 years. I've worked hard and done everything that's been asked of me, but in the back of my mind I knew redundancy could be on the cards at some point, so I just kept my head down because I have 16 years service (and an enhanced redundancy package)

Fast forward to 2016, and my company finally announces a major restructure with many jobs being put at risk. The vast majority of my colleagues are made redundant, but within my team (of which there are 7 members) I am one of the "lucky" ones that they they propose to TUPE to an external service provider. It’s worth noting that out of the 7 team members, the 3 staff who are unaffected have all been recruited in recent years by the new management team. The 4 members who have been chosen for redundancy or TUPE have many more years’ service but were not recruited by the new management team. For me, this decision to single me out has grave consequences because I will be forced to leave the final salary pension scheme which is a huge benefit for me. So after putting up with the situation for 4 years in hope of eventually being offered redundancy, I'm now being told that I will continue (in the job I didn't accept) at the external company, albeit with less benefits!

The bottom line is, I fully appreciate they are entitled to TUPE me across without the pension being honoured, but there are a few outstanding questions i.e. Are they allowed to make 2 members of my team redundant without putting us all at risk? Are they allowed to cherry pick 2 members of my team for TUPE whilst the other 3 (with a much shorter service record) remain unaffected? And finally, coupled with my personal issues dating back to 2011, does all of this amount to enough evidence to warrant raising a grievance?

Thank you for your time. Any advice would be much appreciated

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Can you give us some information about the 7 roles in your team and about which roles are being outsourced?
What I'm trying to establish here is whether the staff who are being TUPE'd the only ones who spend all their time doing the work that is being outsourced.

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Thanks mariefab

Within my team, our tasks are assigned to us via an online ticketing system, so although on paper we are in the same team, in all honesty the tasks we are assgined do vary slightly. However, this is not through our own choice. We do not select our tasks, they are actually assigned to us. In other words, the new management team could easily assign the important/critical tasks to the new engineers, and the mundane work (which is to be outsourced) to the old guard (if that makes sense?)

To be honest though, my main concern is that I now feel like simply walking away and finding employment elsewhere. Taking in to account everything that's happened to me since 2011, this seems really unfair. Especially when colleagues all around me are walking away with a great redundancy package. I just seem to have suffered knock-back after knock-back in recent years. I'm considering going to see a solicitor for legal advice, but obviously I am trying to gauge whether or not I have a potential case before forking out £100's on solicitor fee's

Thanks once again

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Are we talking about a team of 7 engineers, 3 of whom get assigned the important tasks while the other 4 undertake the mundane tasks? (Never mind what management could do- what actually happens?)

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

It's really difficult to give a clear answer, as the tasks obviously vary and the team is spread across multiple locations (so obviously any local jobs will be assigned to the local engineer on site. But we also work on tasks across the globe remotely, so any of those tasks could be assigned to any one of us

We all have the same job title and we're all in the same team reporting to the same manager. In theory, we should all be able to do each others work. But yes, what you're suggesting is often correct - the 3 new guys who are not impacted by redundancy or TUPE sometimes get assigned the more interesting jobs, and the rest of us tend to get the more 'business as usual' day-to-day tasks. This is not always the case, but sometimes it happens

Thanks

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

When is this transfer supposed to take place?

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Mid April

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

You've said that the more interesting/important/critical tasks sometimes get assigned to the 3 new guys.
1. Can I take it that you can view all the available tasks, not just the ones assigned to you?
2. Also, since they started talking to you about the restructure, have the 2 people that they propose to transfer only been recently assigned the mundane tasks that they intend to outsource?

FYI- I'm asking these questions to determine whether TUPE is even in scope in this situation.
From what you've said so far it might only apply if the whole team of 7 were to be transferred.

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

1. Can I take it that you can view all the available tasks, not just the ones assigned to you?

Yes, I can manually look at the jobs assigned to other engineers, but I wouldn't generally do this as all jobs are actually assigned to us

2. Also, since they started talking to you about the restructure, have the 2 people that they propose to transfer only been recently assigned the mundane tasks that they intend to outsource?

That's a tricky one to answer, but I would probably say yes, in recent months (as the restructure has been looming) the newer engineers seem to be doing less BAU work and have been tasked with the bigger/more important jobs

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

1. Is BAU the name of a client/contract? Or is it the title given to mundane work?
2. It's the BAU work that is to be outsourced. Yes?
3. Would it be possible for you to print out weekly copies of the distributed work?
If you did so, would it be possible to identify, in those documents, which tasks were BAU and which were not?

In order to establish if TUPE applies, the first question is whether 'immediately before the service provision change there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;' (TUPE 2006 3(a)(i))

P.S. It would be in your interest not to raise any of the matters we're discussing with your employer until a week before the proposed transfer.

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

1. BAU is 'business as usual'. So in my case, it's the regular day-to-day jobs that come in
2. I am still awaiting confirmation from HR on the selection criteria, but I imagine they will say BAU work is being outsourced, hence the reason why I'm up for TUPE. Apologies for repeating myself, but my concern is why 2 of us are up for TUPE, 2 of us are earmarked for redundancy, and 3 are unaffected. We are all in the same team
3. That might be difficult, because work which is not BAU may not be assigned through the ticketing system. I could probably prove that I have done a lot of BAU tickets whilst the 3 guys who are safe haven't (therefore suggesting they have been doing non BAU work)

Could you explain why I shouldn't raise these concerns until a week before the transfer?

Thank you once again for your support. I really appreciate it

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Apologies for repeating myself, but my concern is why 2 of us are up for TUPE, 2 of us are earmarked for redundancy, and 3 are unaffected. We are all in the same team

OK, I'm not saying that the following is true. But this is what the Company would need to able to evidence to comply with the law and bring TUPE into scope.
You have a team of 7 engineers who deliver all the allocated work.
IF, there are 2 categories of work to be distributed to that team and the structure within the team is that a sub-group of 3 do all of one type of work (critical etc.) and the other sub-group of 4 do another type (BAU), the employer can claim that there are really 2 teams.
So, if they then decide to outsource just the BAU work only the team of 4 doing the BAU work would be affected.
If they decide that instead of 4 employees only 2 employees are needed to complete the BAU work they would make 2 of the roles redundant. All 4 BAU work employees should be informed that they are at risk of redundancy. Then the Company should decide the criteria on which the redundancy decisions would be made. Follow that process with the 4 employees, then announce which 2 are to be made redundant.
The remaining 2 employees would then transfer to the outsourced service provider when they start the contract for the BAU work.

I could probably prove that I have done a lot of BAU tickets whilst the 3 guys who are safe haven't (therefore suggesting they have been doing non BAU work)

That ^ is exactly what you don't want to prove. You want to prove how much non-BAU work you've done.

Could you explain why I shouldn't raise these concerns until a week before the transfer?

If you raise the issues earlier you will provide the Company with the opportunity to ensure that until mid-April they only allocate the work to be transferred to the outsource company to the 2 that they want to transfer.
Thus making TUPE apply perfectly by answering these 2 questions that determine whether, or not, you should transfer with a resounding Yes.
1. Immediately before the transfer is there organised grouping of employees which has as its principal purpose the carrying out of the activities concerned?
2. Are the 2 employees assigned to that group?

What you should try to do is gather as much evidence as possible to show all the different jobs you do in the next month or so (and if possible evidence of what kinds of jobs you've done in the last couple of months too).
The hope will be that it'll turn out that what you do (have done) up until close to the proposed transfer doesn't match with whatever it is that they're actually outsourcing.
Because for them to get away with this it needs to match.
It's no good them saying, 'Well we mostly allocate this kind of work to those 2 and the other 3 don't do very much of it'.
The team or sub team must be run in a manner that shows that there are effectively 2 seperate teams within it. Many Companies have tried and failed to bring TUPE into scope by talking about the percentages of the outsourced work done by employees.

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

First of all, I just want to say thank you once again. This is a really tough time for me and you have been extremely helpful and I really appreciate it. With your advice, I think all of this is starting to make sense now...

I wouldn’t say there are 2 categories of work, it’s not quite as clear cut as that. In theory everything should come through the ticketing system and all 7 engineers are definitely still performing some BAU work, but I am confident there has been a deliberate effort in recent months on the run up to the TUPE announcement to allocate 3 of the engineers less BAU work (presumably in an attempt to justify why they’re not effected). In fact, one of the engineers has actually recently been promoted to another team and the other 2 have said to me “I’m starting to take a back step from BAU work now and concentrating more on specialist/project work”. I didn’t understand why at the time and I didn’t understand why they had been offered these other so-called opportunities and not me, but now it’s becoming clear. This must be the company’s attempt to safeguard the 3 engineers who they want to keep on their books. There’s nothing wrong with the other 4 of us, in fact, the statistics show that we have actually done the majority of work in the past (I can run reports off from our ticketing system). But I suppose the company could argue that this only goes to prove that they have been doing less BAU work, but that argument should be invalid as it’s only recently that they’ve started to try and isolate themselves by taking a back step!

It’s going to be very difficult for me to prove how much non-BAU work I have done. We were all told that we should only perform BAU duties, and additional resource would be allocated for any non-BAU requests and we shouldn't waste our time on them as we are not project resource. Unfortunately, because I have followed this process, BAU is 99% of the work that I do. However, I can prove that the other guys continue to do BAU work and do not concentrate solely on project/specialist work 100% simply by looking at the tickets they have closed

In summary, my point here is that we do not pick and choose the tickets ourselves. The management team assign the tickets to us, so although we should all be on a level playing field and are in the BAU team (for want of a better word), it would be extremely easy for the managers in recent months to assign 80% of BAU tickets to the guys they want to lay off or TUPE, and 20% of the more interesting/complex tickets to the guys they want to keep

It's no good them saying, 'Well we mostly allocate this kind of work to those 2 and the other 3 don't do very much of it'.
The team or sub team must be run in a manner that shows that there are effectively 2 seperate teams within it. Many Companies have tried and failed to bring TUPE into scope by talking about the percentages of the outsourced work done by employees.

This is exactly what they're doing. We are all in the same team but 3 engineers have been cherry picked for the good stuff whilst the others are holding the fort doing BAU tasks

Having said all of that, even if I accept the fact that 3 guys are safe because they have been assigned interesting stuff (rightly or wrongly), if they've made 2 out of the remaining 4 redundant, shouldn't we all have been put at risk as you alluded to? (I think their argument in this case will be based on location, as we are split acorss multiple sites)

Thank you

[mariefab]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

all 7 engineers are definitely still performing some BAU work

That's good. About what percentage of the favoured ones work is still BAU?

However, I can prove that the other guys continue to do BAU work and do not concentrate solely on project/specialist work 100% simply by looking at the tickets they have closed

Good, print off all their closed tickets and save it. Do this as much as you can from now on and if you can access their closed tickets for the last couple of months print that off too.

if they've made 2 out of the remaining 4 redundant, shouldn't we all have been put at risk as you alluded to? (I think their argument in this case will be based on location, as we are split acorss multiple sites)

That could indeed be their argument.
Redundancy occurs not only when less employees are needed to do the work, but also when less (or no) employees are needed to do the work at a particular place (or area).
See Employment Rights Act 1996 s. 139 (a)ii & (b)ii below.

http://www.legislation.gov.uk/ukpga/1996/18/section/139

[bradder]

Re: Unsure if I have a case for a grievane or constructive dismissal. Please help!

Just to clarify, the team currently looks like this...

1 x engineer based at location A (TUPE, presumably because location is deemed critical)
2 x engineers based at location B (redundant, presumably because location is potentially closing)
2 x engineers based at location C (1 TUPE, 1 unaffected. Both required presumably because this location is also deemed critical)
2 x engineers home based (both unaffected, although 1 has recently been promoted to another team)

Unfortunately, although we're in the same team on paper, we do all tend to be assigned slightly different tickets because we all have our own niche areas, but we do overlap i.e. an engineer who is being TUPE'd has the same niche area as another engineer who remains unaffected, etc. Aside from the fact we have niche areas, our job titles (as far as I am aware) are all the same. Basically, the idea is that we're a global team and we should all be able to do each others' work if required. This has been a big thing in the past - the company has specifically said that we should be able to do our jobs from any location (I don't have this in writing, but that's been the goal for a number of years). If you take me for example, I am the engineer based at location A and the vast majority (probably around 99%) of my tasks are performed remotely! In fact, the nature of my work means that I cannot generally make changes in the UK during business hours, so my colleagues across the globe tend to do the UK tasks and I am assigned tasks in Asia outside of their regular business hours, etc. So if they were to argue that I am required to be onsite purely based on location, this would go against the whole ethos of the global team and is not really part of my job to be on site just for local hands on support! Please note, I am only assuming at this stage that they are going to use location as a reason behind the decisions because I've heard it through the grapevine, but I am having a really hard time getting the business to actual confirm their selection criteria

Regarding running off historical reports, it's not a problem. I can go back years, but I've probably shot myself in the foot a bit by working hard! Take the last 3 months for example, the stats are as follows...
Me (engineer at location A) has done 63 tickets
Home based engineer has done 36 tickets

That's probably because he has been asked to work on other jobs that aren't logged on the system, contrary to the process, but the 36 jobs he has completed are almost certainly BAU

Hope that makes sense