Demotion - lawful?

[abeda1402]

Hi

I hope you can help. I am posting on behalf of a friend, who is amongst other health issues is suffering from depression and unable to do so himself, but will post as 'I' for ease.

I have been facing disciplinary and have now received the disciplinary outcome - disciplinary demotion.

i have checked the handbook which states that 'disciplinary demotion should be used rarely & generally used in capability situation. Seek advice from your HR team'

Could it be safe to assume that disciplinary demotion can therefore only be used on the grounds of capability?

Reasons for the demotion are:

1. Failing to follow the correct procedures, and thereby potentially contributing to large losses within the company.

2. Failing to follow the correct cash procedures & leaving cash vulnerable.

I have been advised that any further incidents of misconduct are likely to lead to further disciplinary action and this could ultimately result in the dismissal from the company.

I have been with the company for 6 years and have a clean disciplinary record.

I really would appreciate your help and advice.

Thank you.

[Openlaw15]

Re: Demotion - lawful?

Hi

I hope you can help. I am posting on behalf of a friend, who is amongst other health issues is suffering from depression and unable to do so himself, but will post as 'I' for ease.

I have been facing disciplinary and have now received the disciplinary outcome - disciplinary demotion.

i have checked the handbook which states that 'disciplinary demotion should be used rarely & generally used in capability situation. Seek advice from your HR team'

Could it be safe to assume that disciplinary demotion can therefore only be used on the grounds of capability?

Reasons for the demotion are:

1. Failing to follow the correct procedures, and thereby potentially contributing to large losses within the company.

2. Failing to follow the correct cash procedures & leaving cash vulnerable.

I have been advised that any further incidents of misconduct are likely to lead to further disciplinary action and this could ultimately result in the dismissal from the company.

I have been with the company for 6 years and have a clean disciplinary record.

I really would appreciate your help and advice.

Thank you.

Hello, Abeda1402

Normally, the employer can take whatever action is necessary if the employee is not performing, as it's potentially damaging to his business to keep someone in a responsible position but who's competence raises questions. There should have been a fair investigation, he should have been permitted to be accompanied by work colleague or union official. Other than that, you may have the employer on 'procedure.' If the procedure is not followed, you could win at a tribunal on a technicality.

[charitynjw]

Re: Demotion - lawful?

Are the employers 'officially' aware of the health problems? (Note - not just Occupational Health, as there may be issues of confidentiality).

Are OH involved?

[R0b]

Re: Demotion - lawful?

Just to add, you cannot unilaterally demote someone as that will be deemed a breach of contract and allow the employee to resign for constructive and/or unfair dismissal. I see the handbook says they should demote but is there anything in your contract which expressly provides the employer to demote you as a sanction? If its non then perhaps it could be considered unlawful - I think if you look at ACAS it also says they should provide for this expressly in the contract.

For it to be deemed lawful, does your contract say that the handbook is contractually binding on you?

[Openlaw15]

Re: Demotion - lawful?

Just to add, you cannot unilaterally demote someone as that will be deemed a breach of contract and allow the employee to resign for constructive and/or unfair dismissal. I see the handbook says they should demote but is there anything in your contract which expressly provides the employer to demote you as a sanction? If its non then perhaps it could be considered unlawful - I think if you look at ACAS it also says they should provide for this expressly in the contract.

For it to be deemed lawful, does your contract say that the handbook is contractually binding on you?

It must be procedurally clear though and not be contradictory to the facts, ie the company policy on one thing must be the same in action, ie applied to the employee's situation: Liberty Living plc v Reid (2010) EAT (Case No.0039/10). It's not procedurally clear though where the policy on 'disciplinary' in action contradicts company procedure relating to 'disciplinary demotions:' Liberty Living plc v Reid (2010, EAT).

[Nomoneynoproblem]

Re: Demotion - lawful?

Hi

it is difficult to advise fully without knowing the full reason for disciplinary action. If it's purely on health grounds then it will be useful to have the answers to Charitynjw's questions above.

Regards

NMNP

[JulieM]

Re: Demotion - lawful?

With the demotion has there also been a reduction in pay or perks? If these are the same I believe the sanction is classed as less serious