Loss of seniority

[DeeBee]

Hi,

There are currently changes going on where I work and one of these may result in me losing all my line management responsibilities and possibly my project management responsibilities (both of these aspects of my work are listed in my current job description). My title, benefits and salary would remain the same, but would this loss of duties and seniority amount to a demotion?

If so, would I then be in a position to raise a grievance and if unsuccessful, pursue a breach of contract and constructive dismissal?

Thanks in advance.

[R0b]

Re: Loss of seniority

Quite possibly yes, though the starting point is to consult your contract of employment. They may have a clause about changing your role though courts are cautious to enforce it sometimes.

the breach must be considered a fundamental breach so if those duties you say are removed from you, it is arguable there is a breach of contract. Perhaps you should seek some legal advice in this maybe a fixed fee consultation

[Sangie595]

Re: Loss of seniority

I disagree. I think the possibility of pursuing a successful claim would be negligible.

The starting point is always the needs of the business. If the role as it currently exists no longer meets the needs of the business - and if the employer says that it doesn't they are not required to prove it - then they can restructure posts or services in any way they wish. The question then comes, are the changes significant enough to put jobs at risk through redundancy? If the management and project role in your job is significant, then you could argue that this is a redundancy. However, the employer had a suitable alternative position to offer you, on the exact same terms, and it is a job you can do. Refuse it and you walk away with nothing.

I'm sorry but based on the information provided here, you would never succeed in an empty tribunal claim. And that is setting aside the fact that constructive dismissal is almost impossible to win anyway.

The question I would have is whether there are other jobs like yours and whether the same thing is happening to all those posts, or just yours. That may open up other options for you.

[R0b]

Re: Loss of seniority

I disagree. I think the possibility of pursuing a successful claim would be negligible.

The starting point is always the needs of the business. If the role as it currently exists no longer meets the needs of the business - and if the employer says that it doesn't they are not required to prove it - then they can restructure posts or services in any way they wish.

I don't think that's quite true, there has been a case about a football manager who was successful when the club removed his right to select the squad. Equally, if there is a fundamental change they would need to terminate the employment and offer new terms with those duties removed, or agree the changes in writing. If they simply impose the changes without agreement or terminating, they could risk a claim for constructive dismissal.

An employment contract is like any other contract - imposing a unilateral change will be in breach and a claim for breach of contract whilst working under protest, or if the breach is fundamental then resign and claim constructive dismissal. Losing all management and project management responsibilities could be considered a fundamental breach but it will depend on the circumstances - see Hilton v Shiner Ltd as an example. If those functions were the principal duties and now they are being taken away, then a fundamental breach is likely to have occurred. Again, the starting point is reviewing the terms of the contract to see if the employer is entitled to amend the duties and if so, under what circumstances.

[Sangie595]

Re: Loss of seniority

I don't think that's quite true, there has been a case about a football manager who was successful when the club removed his right to select the squad. Equally, if there is a fundamental change they would need to terminate the employment and offer new terms with those duties removed, or agree the changes in writing. If they simply impose the changes without agreement or terminating, they could risk a claim for constructive dismissal.

An employment contract is like any other contract - imposing a unilateral change will be in breach and a claim for breach of contract whilst working under protest, or if the breach is fundamental then resign and claim constructive dismissal. Losing all management and project management responsibilities could be considered a fundamental breach but it will depend on the circumstances - see Hilton v Shiner Ltd as an example. If those functions were the principal duties and now they are being taken away, then a fundamental breach is likely to have occurred. Again, the starting point is reviewing the terms of the contract to see if the employer is entitled to amend the duties and if so, under what circumstances.

Sorry but I totally disagree. This is not a football manager that we are talking about - that is a pretty rare example.

The principal concern of a business is to determine what it needs from its employees in order to survive and profit. That overrides any employees " right" to have the job they want. If the change is significant then it would most certainly be potential redundancy, but the overt of suitable alternative employment would override the redundancy.

Of course, if the employee wishes to be made redundant instead, then kicking up enough of a fuss about the change may prompt the employer to comply rather than keep a employee who doesn't want to be there.

An employment contract may be a contract, but I do not agree that it is like any other. There is more than enough evidence from employment disputes to demonstrate that. A employment tribunal does not simply consider the terms of the employment contract - it considers wider concerns. I am quite confident in advising the OP that if they were to attempt to claim constructive dismissal based on reasoning their salary and other conditions, they would lose. As I am sure you are aware, it is not at all uncommon for tribunals to rule against people who have actually lost salary and terms - unlike other courts, employment tribunals operate in real world conditions, and take into account things like the needs of the business, the degree of financial loss to an employee, the choice of a employee to go elsewhere if they don't like the new terms, and the process adopted. Provided the employer adults a legally fair process, the chances of this being viewed as unfair in a tribunal are exceptionally low. Given the chances of winning constructive dismissal claims for any reason are exceptionally low - the worst of any type of claim- then adding the fact that unfair dismissal claims in similar circumstances most often do not succeed, I would have to conclude that there is a negligible chanced of winning any such claim.

That puts the OP at serious financial risk- they lose their job, have no redundancy money, and have to pay tribunal fees for an action they are unlikely to win. And even if they won, which I have no confidence that they would, then awards are generally much less than most people assume they are, and the chances of being found partially to blame by refusing a suitable job could reduce a award further. Then there is reputational risk, depending on the employees field of work and the employers response to reference requests.

If the OP was to consider any such risk, then they would need to be very, very sure that it was worth it and that they could not countenance any other option. The chances of obtaining "free" legal representation for such a risky case would be low, and it would require them either to conduct their own case or pay for legal representation. All in all, if the employee wishes to lose their job, then the least risky avenue is to attempt to push for redundancy, but that is not a right and the employer may refuse it.

[R0b]

Re: Loss of seniority

Sorry but I totally disagree. This is not a football manager that we are talking about - that is a pretty rare example.

Regardless of the occupation, its the duties under the contract that is in question.

The principal concern of a business is to determine what it needs from its employees in order to survive and profit. That overrides any employees " right" to have the job they want. If the change is significant then it would most certainly be potential redundancy, but the overt of suitable alternative employment would override the redundancy.

And there is a way to go about it, again, an employer cannot impose a unilateral change to the contract by their own "right". They can do so with the agreement of the employee, or by terminating the agreement and offering new terms if the change is fundamental. If, by what you say, employers can use their position to impose contractual conditions or variations against the employee's will for whatever reason, and the employee would have to suck it up. That is not the case, with exception to whatever the contract states and does not fundamentally alter the duties set out in the contract.

An employment contract may be a contract, but I do not agree that it is like any other.

So what sort of employment contract are you talking about? Stripped down to the bare minimum, its a contract which is legally binding they are no the exception to the basic rule of contract law. The terms of it govern the employee and the employer and so any variation can be imposed in accordance with the employment contract.

Another case in addition to Hilton v Shiner above, is Hogg v Dover College which the head of department was demoted and the changes affected several things such as his title, the salary which was cut, and the number of hours of work. The Tribunal held on appeal that not only did he college vary the terms unilaterally, but actually terminated his contract and re-engaged on new terms. Despite him continuing to work he was entitled to claim unfair dismissal. Another case that could be relevant is Mariott v Oxford and District Co-operative Society where the Foreman could not longer be afforded and they offered a supervisor role on Ł1 a week less. The letter by the Society was deemed an imposed term as it gave no option and the Court of Appeal held that the employee had not consented.

So there appears to be a number of cases which suggest that if the duties or role of that person is reduced by the employer without agreement, then there is a real risk of breach of contract but also constructive and/or unfair dismissal, depending on the circumstances. As I said before, the starting point is to look to the terms of the contract and see what it says, if there is a disagreement then the employer perhaps could give notice to terminate the contract and offer the job on new terms which would avoid any breach and any other claims the employee may have.

[Sangie595]

Re: Loss of seniority

Once again, you are not comparing like with like, and disregarding the way in which employment tribunals operate and determine employment law. There is no pay cut involved. There is no suggestion that this is unilateral. And there is no evidence that the employer will do anything other than follow the law as I have explained it.

However, I see little point in rehearsing this again. The OP had two viewpoints which are diametrically opposed. They must decide whether they are willing to risk their employment over this, and whether they believe that your view or mine will prevail in an employment tribunal. It is a risk you would obviously take. It is not one I would take.

[R0b]

Re: Loss of seniority

I am not sure what you mean by comparing like for like, it is rare for the same issues to be like for like but the case law gives an indication of what factors will be considered. They certainly don't need to be like for like as you put it, you can apply the same principles. You seem to have made a broad brush approach about the Employer having the right to determine its needs over the employee, whilst that is true, there is a way to go about it, unilateral change would not be one of them though.

Yes there is no mention of unilateral change but equally no mention of whether or not they will be implementing the change unilaterally, as I said in my previous posts, it depends on the circumstances and what will happen. Can the OP claim constructive dismissal if the employer imposes the changes unilaterally? Yes, quite possibly. Can the OP claim constructive dismissal if the employee terminates by giving notice and offering the terms on a new contract? Probably not no.

[DeeBee]

Re: Loss of seniority

If it happens, it would likely affect others of my grade as well. I've read about "stand and sue". Does that mean I can pursue legal action without resigning first?

[Sangie595]

Re: Loss of seniority

If it happens, it would likely affect others of my grade as well. I've read about "stand and sue". Does that mean I can pursue legal action without resigning first?

If you aren't prepared to lose your job, then you aren't prepared to "sue". Because I can guarantee that you will lose your job. Technically, there are some circumstances were you might be able to do this. In the real world, you will watch your back 24/7 waiting for the axe to fall. And fall it will. Nobody is so good that a diligent employer won't find fair reasons to discipline and dismiss. You just have to give them a good enough reason to be diligent. Legal action against your employer is the reason.

If you are determined to make an issue out of this then you must take the other posters advice and let the cards fall where they will. I believe they will fall with you having no job and no case. But that is the choice you must make. Trying to have it all is the fastest route to insanity - and knowing people who have tried this, that is the worst place you could be. People have literally been broken by this. Don't do it.

If you truly believe you can win a case, then you fight it all the way. If that isn't for you, then you give up and accept it. There is no half way house where you keep the job AND fight it.

[Sangie595]

Re: Loss of seniority

I am not sure what you mean by comparing like for like, it is rare for the same issues to be like for like but the case law gives an indication of what factors will be considered. They certainly don't need to be like for like as you put it, you can apply the same principles. You seem to have made a broad brush approach about the Employer having the right to determine its needs over the employee, whilst that is true, there is a way to go about it, unilateral change would not be one of them though.

Yes there is no mention of unilateral change but equally no mention of whether or not they will be implementing the change unilaterally, as I said in my previous posts, it depends on the circumstances and what will happen. Can the OP claim constructive dismissal if the employer imposes the changes unilaterally? Yes, quite possibly. Can the OP claim constructive dismissal if the employee terminates by giving notice and offering the terms on a new contract? Probably not no.

And you see, therein lies the problem. You don't understand how employment law operates differently from contract law. If the employer terminates the employee by giving notice and offers reengagement on the new terms, then the answer is not "probably not". Ever. The answer is definitely not. Always. But they could claim unfair dismissal. Nothing constructive about it.

Nobody has said there will be unilateral change. I did not say it, the OP did not say it. But the employer fires have the absolute right to determine their business needs and the roles that deliver that. And, as I have said repeatedly, provided they comply with a legally fair process then they will achieve what the wish.

[DeeBee]

Re: Loss of seniority

If it does happen and I kick off enough, they might offer me a severance agreement. I'd probably take it. I hear the standard is 6 months salary and an agreed reference.

[Sangie595]

Re: Loss of seniority

If it does happen and I kick off enough, they might offer me a severance agreement. I'd probably take it. I hear the standard is 6 months salary and an agreed reference.

In that case, what you need to do is use the system. Do not burn any bridges or cause offense - you can be assertive without doing either. You want to create an environment where you can continue to work if it comes to nothing - you don't want to be alienating managers that you might have to work for or with.

[TonyG]

Re: Loss of seniority

Being a 'manager' does not mean 'seniority'. If it went to a tribunal all the employer has to say for example is:- staff on zero hour contracts and minimum wage who are not employed or contracted as managers are equal in seniority, or more senior than, those staff employed as full time managers because the zero hour contract staff have had specific training. The employer will not even have to supply copies of training records to support that claim because the judge will simply take their word for it. The OP should forget any issue they have about losing seniority as it is a non-issue.

[DeeBee]

Re: Loss of seniority

Managing a team of people, projects and budgets then being reduced to a hands on role IS a significant loss in seniority! It would be easy to prove that the following duties are part of the current role (org charts, performance reviews etc.)