Can my employer advertise my job?

[TUPEornot]

I was TUPE'd into a local authority from the private sector nearly two years ago when they took a service they provide back in house. I stayed on my previous employers T&C's initially, and we were told a restructure would be carried out imminently. For various reasons, this has been delayed several times, but has now been decided will take place during September.

Our job descriptions have been agreed - mine is identical to the job description I was TUPE'd over with. The only change is I requested an increase in hours from 20 to 27 last year which was agreed.

I am the only person doing my job, as part of a small team doing a range of specialist roles. We are all similar, identical job descriptions to the TUPE transfer. We've just been told that they want to advertise our jobs and we are welcome to apply for them but the restructure won't ring fence them for us, despite the fact they are our jobs. No changes, no change to our immediate team structure (although there are to the wider directorate). Are they allowed to do this?

3/5 of us are Unison members and have asked for their advice, but I was wondering if anyone here knew anything as I'm worried sick right now.

Sorry, they MAY want to advertise our jobs. Which they haven't decided yet. I just need to know if they can or not.

But if the consultation is set to start on 1st September, surely they should have made that decision by now?

What a worrying situation. I was in the same situation as you about 10 yrs ago when i was TUPE'd across from a quango which closed down to a Council. They didn't advertise the jobs and we were lucky enough to move over with existing T&Cs. Previous to this they restructured every year or so and we were given new JDs but weren't made to apply for our jobs. We were lucky as i think it's got tougher in that now they can advertise the jobs externally however have to issue a statement with the job ad that says those at risk will have priority. Are you in a union? Might be a good idea to get some advice. I wish you all the best of luck

If they employ someone else to do the job you are doing, then they are dismissing you. As there are no grounds to dismiss you, then it would be automatically unfair and you could have a successful claim against them as a result.

What are they playing at? What's the justification for this?

They can restructure, if for example there are now too many staff for the needs of the business. Just because you were tupe'd two years ago doesn't mean they can't reorganise now.
Do you mean you'll have to apply for your own job, if there is more than one of you doing it? They can downsize the team, or take roles out and then ask everyone to apply for the role they want and apply selection or scoring.
They can pretty much do what they want so long as the reason isn't solely connected to the transfer.

Whole point of consultation is (should be) to take into account the views of those affected before making any final decisions. So if they haven't fully decided yet pending the outcome of consultation, that's a good thing. It is normal for them to propose a course of action, and confirm it after consultation has taken place and allowed those affected to challenge or comment on the proposals.

Keep chasing your unison rep - Based on the information you've given, I can't see on what basis they would place you at risk of redundancy and not ringfence your role if an essentially identical role will survive the restructure. Your rep will have access to all the internal policies and relevant information so make sure they come speak to you asap.

They may be wanting to take out OPs role but pool her with colleagues for other roles in which case they may advertise the remaining roles and put everyone through consultation

I was recently in a similar situation. They don't HAVE to ringfence you if there are more people than roled available, but if that happens they have to find you suitable alternative employment. If they don't, you can get a redundancy payment.

I can't see who I could be pooled with. There isn't anyone with the required qualifications or experience currently employed.

I suspect the motive is to reduce my salary as I was TUPE'd on a private sector salary.

So they would advertise my job with a lower salary and ask me to apply for it.

They may of course decide they don't want to resource my job in house, and outsource it, but surely TUPE would apply again in that scenario?

I really need my job.

This could possibly be a redundancy situation if it's due to a restructure? Although if they are advertising the position then it isn't redundant at all.
Sorry, no help I know x

The immediate thing you need to push them on is why. If the roles aren’t changing and the team structure is changing, they need to give a good reason why this is necessary.

If any of you are not ‘successful’ at applying for your own jobs if the circumstances are exactly as you describe, your employer is opening itself up to a legal claim.

They must presumably have some sort of logic so you/union need to dig down to what it might be.

They could be combining elements of your role with your colleagues, and reducing numbers, which would necessitate pooling. You need to get a business case explaining their proposals when you go into consultation.

We've just been told that they want to advertise our jobs and we are welcome to apply for them but the restructure won't ring fence them for us, despite the fact they are our jobs. No changes, no change to our immediate team structure (although there are to the wider directorate). Are they allowed to do this?

You've confirmed they have said they "may" advertise your jobs. They would argue they are 'putting their cards out on the table' regarding their thoughts and plans, as an input to the consultation period.

Your Union needs to put pressure on Management during consultation to provide a clear statement of rationale:-

• how will they justify a decision to advertise jobs (externally and internally?) when the current incumbents in-role have the unique skills and expertise and fulfil the role spec?
• will the roles being advertised be identical or will the roles change, and if so what is the rationale for change?
• if existing staff apply for the role and are not successful, what does Management commit to do next?

The fact is if they are trying to manipulate the situation by downgrading the role, changing the role-specifications and associated salaries, they will need to fully justify the changes and may, as stated upthread open themselves up to valid claims if they are trying to dodge redundancy as part of that process.

This happened to my dad last year. Due to resturcturing his job was advertised and he was invited to apply for it. He didn't get the job, seems like they hired someone cheaper with less experience, but he was encouraged to apply for other roles with the same salary as what he was on and got one of those.HR seemed to be quite helpful in helping him find another position in the same office. Seems like it's something they can do and actually do fairly regularly.

It's good that things worked out well for your father, @Marinetta, however if nobody challenges an organisation's actions and decision-making that they aren't content with, then the company gets let off the hook.

It depends how satisfied or discontent the workforce is, regarding how the role changes are presented and managed, and whether affected staff come away with what they are happy with, or if they need to challenge it.

I'm happy to accept that the TUPE is irrelevant so that's one hurdle over. It will be 2 years on 31st October.

I am happy that they want to restructure, obviously I am acutely aware of budget pressures. But we are all working at 120% and more at the moment. The workload is bonkers.

I guess the answer is "maybe, depending on how they want to do the restructure"

Internally advertising is one thing - I obviously don't know all 6000 odd people who work here, but I would be very surprised if there is anyone with the specific qualification and experience to do my job. My colleagues have similar but slightly different roles - I am just as not qualified to do their jobs as they are not to do mine. It's the possibility of them going externally when the job spec is the same that really feels unfair.

I've been in touch with the union who say they will fight it, but it's all happening quite quickly at the moment.

Realistically an organisation need the right person with the best skills match, doing the right job - it's best for their productivity numbers and ensure they have a happy workforce. Internally advertising vacancies makes good sense, it gets them a person who's already embedded in the culture and doesn't need to be onboarded.

They need to be transparent as to their intentions to advertise, because it begs the question why they would disrupt the status quo , potentially destabilie the existing workforce and incur recruitment costs for little benefit. Once your Union has gained access to their reasoning, and, by rights, it be made transparent during the coming consultation period, it should enable you to know what action to take.

Take heart, if you've got great skills, they won't want to lose you - sounds like if your workload is high that's a positive sign (better than a decline in activity!)

Well I would say I had great skills, but everyone would, I think

I've never had a bad performance review, and my boss has never said anything that would give me cause for concern about my performance. So hopefully that will count for something 🤷‍♀️

Really hard to offer much advice without knowing what your employer is proposing to do OP. I'm sure once you are in consultation you will get sight of the proposals, in fact if you don't then I'd argue you're not really in consultation. We may be able to help a little more if you come back and update us then.