Redundancy v Dismissal and Re-engagement Query

[BossBhean]

Sorry this is going to be long, but I need some rational minds to advise on a complicated situation involving TUPE, fixed term contracts and changes to my contractual terms and conditions. I have a fairly clear view of what should have happened and my union seem to have an entirely different view, they are not being particularly proactive and I feel like I am banging my head against a brick wall, but I also don’t think I’m completely wrong!

I worked for ‘Company A’ on a series of fixed term contracts for 4 years, continuous, no breaks in service. I was then TUPE transferred to ‘Company B’ along with the rest of the workforce. All of them, except me, were transferred as permanent employees, including one who had been on the exact same 4 years of FTCs as me. I was told when the transfer took place that I was being given a temporary contract for 6 months by Company B. I argued that I was now a permanent employee, they ignored me and my TU didn’t address it with them. Six months later I was told my initial 6 month temporary contract was being extended again for a further 6 months. I again argued I was permanent and was ignored.

A month before this contract is supposedly expiring, Company B announces a restructure, and they inform me my ‘temporary’ contract is expiring, my post is being deleted, but they offered me one of the new posts they are creating in the restructure. The new posts are on new terms and conditions from the ones that I TUPE’d over with and whilst the new post I was offered is on a slightly higher hourly rate from my old post, the Ts & Cs are considerably less favourable and in real terms I am losing more financially than I am gaining from the increased hourly rate. Some of the new posts were higher grade and more responsibility so they were open to all employees to apply for as part of the restructure. Colleagues that applied for these promotions were fully aware they would be giving up their TUPE’d Ts & Cs and accepted that was the deal.

I again argued I was permanent and that if they were deleting my post, then I should be entitled to redundancy and redeployment, with proper consultation and due process. I tried to discuss it with them but they were adamant, my temporary contract was expiring and I could take the other post on the new Ts & Cs or nothing; implying they were doing it as a goodwill gesture rather than them having a legal obligation to do it.

The day after my ‘temporary’ contract expired I received a letter – which was in response to one I had sent them before the expiry date – saying that they had checked back on my employment record and I was right I was a permanent employee after all and should have been treated as such during the restructure. I asked to negotiate Ts & Cs around my new post as it was, in my view redeployment now, not an expiration of a temporary contract. They refused and told me to accept the new post offered within 24 hours or be removed from the payroll as my temporary contract had expired; despite the fact they had just admitted I was a permanent employee?! They were quite hostile.

I accepted the post, under duress; otherwise I would have been removed from the payroll. I have bills to pay and dependents to support and nobody wants to be unemployed at this time. I feel like I was threatened with summary dismissal if I didn’t agree.
I believe I have been dismissed, either wrongfully or unfairly not sure which, then reengaged on a contract with Ts & Cs that are less favourable when I should have been taken through the redundancy / redeployment procedure properly and possibly been able to keep my previous Ts & Cs because I was being redeployed. My TU don’t seem to be grasping this and keep replying back that I’ve been ‘redeployed’ into a better paying job, it’s a ‘suitable alternative’, I could have taken my redundancy and left, other colleagues have got new posts that they were recruited into on the new Ts & Cs and they’ve accepted them, why do I think I should be the exception. I totally appreciate I have a job particularly at this time with many people facing losing theirs, but what I’m trying to get across to both Company B and my TU is that I couldn’t have accepted redeployment or redundancy because I was never offered redeployment, a redundancy package or suitable alternative employment, because Company B didn’t believe they had to go through that process; they have reverted to the position that I was on a temporary contract. I believe they have dismissed me and reengaged me and used this as their grounds for changing the Ts & Cs, but that the dismissal was fundamentally flawed.

It’s getting really frustrating and I feel like I am going round in circles. Am I completely wrong here, as my TU and employer seem to think or is there some merit in my argument?

That sounds stressful. But ultimately, if you had been offered redundancy, would you have taken it?

I might have, its a little difficult to judge now as this has coloured my opinion of my current employer, when previously I was reasonably happy in my job and enthusiastic about the work and even the restructure. It all happened so fast and the world changed, so other options disappeared and I had no opportunity to weigh up the options.

Did you ever have a permanent contract?

Talk to ACAS.

I was only ever given a written contract at the start, with Company A that was 2 years FT. After that I was given letters telling me my contract was being extended and for how long, often 6 months at a time but for 4 years in total. When the TUPE transfer took place I was sent a letter saying I was being given a further extension of my FTC for 6 months and this was when I first queried it, as I had then been on FTCs for 4 years and my understanding was that after 4 years on a continuous FTC I was permanent. Company B did say in the letter they sent the day after my most recent 'temporary' contract expired that they agreed with me, after reviewing my employment records, that I was a permanent employee. They've reverted back to their original position in any subsequent correspondence.

I am going to contact ACAS next week, I've been relying on my TU rep who has been telling me that they are waiting for an opinion from their experts, but I get the feeling they aren't really pursuing it particularly 'vigorously' as they don't see the issue the same way as me. I also appreciate they are inundated at the moment so don't want to be constantly bothering them. The clock is ticking on challenging this though!

Do you have legal protection on your household insurance? If so use it.

It sounds as though this was the intention from the point of tupe tbh and isn't uncommon for them to want you on less favourable ts and cs

When did you accept the new position?

The thing is, your trade union is probably right in that what happened was the best outcome but the company could've handled it better.

You are entirely right, the union and the employer are wrong.

It's not a "suitable alternative" if the terms are less favourable, and they have breached TUPE by doing what they have done.

Your options are:

Suck it up
Put in a letter saying you are working under duress and give them four weeks to sort it out
Tell the union you want them to seek legal advice on your behalf (then do one of the other options)
Resign and go to tribunal claiming constructive dismissal
Bring a tribunal claim while in employment for breach of TUPE and breach of contract

The latter two would involve ACAS

To be honest, as great as ACAS are, they are not always right and they are not great with TUPE. So I would ask the union to get specialist legal opinion for you and take it from there.

I don't think any of us who were TUPE'd over didn't expect there to be changes long term, we all saw that coming at some point tbh.

I accepted the post at the beginning of April.

I also see the perspective my TU are coming from that I've still got a job, even if the Ts & Cs are less favourable, so not really any reason to get embroiled in a dispute. I guess my 'disquiet' with this is that the company did handle it badly, were very aggressive with me, (which makes me feel nervous about my future there), have possibly not done the process properly and a blind eye is being turned to the erosion of an employee's employment rights, as the outcome seems to be the best one. It feel it doesn't bode well for any future issues that might arise and as above, I feel quite vulnerable. Maybe another good reason not to 'rock the boat'.

My TU rep has apparently asked the regional office for legal advice. I'm not convinced they are pursuing it with any urgency, as I don't think they believe there is any issue!

Sorry - I agree with your union, and whilst I can see exactly why you want what you want, you aren't legally correct. "Permanent" and "temporary", once you have two years employment, is a red herring - you have the same protections with regard to redundancy. But there is no protection that says that, in the event of redundancy, you are entitled to a job on the same terms and conditions as your previous role. The entitlement is to "broadly similar". and what that means is "not the same".

Only a tribunal can interpret what that means, but right now, I'd say it means you are on a hiding to nothing. Back in 2009, when we had a recession that was "minor" compared to what is now coming, cuts in salary of up to nearly 20% were often accepted as within the scope of a reasonable alternative role. Because tribunals based their judgements on the companies needing to make savings in a dire economic situation, and 20% cut is 80% more than "nothing". If they did that in the last recesssion, and what is now on our hands is a recession that makes that one look trivial, then it is going to take an awful lot to argue that some reduced terms are worse than unemployment and the prospect of no job at all.

That aside, you haven't been dismissed, and you accepted the role. So that is game over. Your union is right. In your mind, you may have a moral argument (honestly, I don't think you do, but that's a matter of opinion, and your opinion is clearly different than mine), but legally you haven't a leg to stand on.

I'm not saying the company are nice. I'm not saying that they couldn't perhaps have done things better. But even if they had, it probably wouldn't have changed a thing. Have you seen what is going on out there? It's a "buyers market" for employers - there are thousands of people being made redundant, and thousands more losing pay and conditions hand over fist. Legally.

I also see the perspective my TU are coming from that I've still got a job, even if the Ts & Cs are less favourable, so not really any reason to get embroiled in a dispute.

This is not, ime, a normal TU stance. Are they too close to the management of the company maybe?

If you've been in the job since April then you've missed the boat really. Too late for a constructive dismissal claim and too late to say you have been working under duress.

@VanGoghsDog

I also see the perspective my TU are coming from that I've still got a job, even if the Ts & Cs are less favourable, so not really any reason to get embroiled in a dispute.

This is not, ime, a normal TU stance. Are they too close to the management of the company maybe?

It's perfectly "normal" to tell someone that the law won't support them on something. Obviously, if all the employees want to strike or take industrial action to protect their employment terms, then the union would "normally" back that. I'm not seeing any evidence that is the case here. In which case the unions advice has to be based on what the law is likely to say. And the law is likely to say "suck it up".

It's perfectly "normal" to tell someone that the law won't support them on something.

I disagree with your opinion on the legal situation here.

@VanGoghsDog

If you've been in the job since April then you've missed the boat really. Too late for a constructive dismissal claim and too late to say you have been working under duress.

That was what I thought too. It was such a mess at the time, with emails back and forth and in the current circumstances, getting a response from anyone was difficult. I actually agreed to accept the post towards the end of April but the start date was set at April 1st. I did ask for the terms and conditions to be discussed once things had settled, but I felt backed into a corner with the statement that I would be removed from the payroll the next day if I didn't accept it.

@VanGoghsDog

It's perfectly "normal" to tell someone that the law won't support them on something.

I disagree with your opinion on the legal situation here.

And this kind of sums up in one post, quoting two different opinions, why I am finding this so confusing!

Ultimately, of course, only a tribunal can decide. If it were black and white we would not need tribunals.

@VanGoghsDog

It's perfectly "normal" to tell someone that the law won't support them on something.

I disagree with your opinion on the legal situation here.

As is your right. Which is why people are best advised to take proper legal advice from their union or a solicitor. Because they are betting their employment on total strangers on the internet who claim to have knowledge. It's too easy to believe total strangers telling you what you want to hear.

There is nothing in law that says that a suitable alternative role must be on the same terms and conditions as the redundant role. Unless there is a law that says that, the OP's whole argument falls, because they are insisting on keeping the terms of a role that no longer exists instead of the terms of the role that they accepted. Whether the OP wanted to take it or not, they did. They might have been within their rights to refuse the role as a suitable alternative and taken redundancy, but they didn't. So having accepted the job they have accepted the terms. Everything else is a legal red herring.

The fact she has accepted the job does, indeed, mean she really has no case now.

No, the law does not say the terms have to be the same. I didn't say it did. But a suit alt has to be similar. There are plenty of definitions in case law.

But also, you cannot ignore the TUPE aspect.

I seem to have unintentionally opened a bit of a 'can of worms' and I'm not going to 'bet my employment' on the responses from everyone who has so kindly contributed, I am waiting for a response from the TU legal section.

I really just wanted to have some outside perspective from people with, perhaps some expert knowledge, but more importantly with no emotional or other investment in the situation as I was becoming so confused around what I thought (rightly or wrongly) should have happened and what actually did, that I'm totally lost now. Getting different opinions is useful in helping me decided if I just 'suck this up' or take some other course of action, so I'm definitely not just looking for people to tell me what I want to hear. All perspectives are useful.

I came to the conclusion too that I had probably lost the opportunity to pursue any case having accepted the other post, regardless of the circumstances when I did that.

I guess the root cause of my confusion is that everyone keeps talking about redundancy, redundant role, redeployment, suitable alternatives, refusing a suitable alternative and taking redundancy, when I was never offered redundancy or taken through any redundancy process. (I've made people redundant in a previous role and been made redundant myself twice before, so I have some experience of it and am acutely aware of the employment situation that is happening now and will only get worse.) I was told my 'temporary' contract was expiring and the post deleted, take the new post or walk away with nothing. I didn't have a temporary contract, I was a permanent employee, but see how I could be considered to have now been redeployed into a suitable alternative, despite no redundancy process.

@VanGoghsDog

The fact she has accepted the job does, indeed, mean she really has no case now.

No, the law does not say the terms have to be the same. I didn't say it did. But a suit alt has to be similar. There are plenty of definitions in case law.

But also, you cannot ignore the TUPE aspect.

Yes, you can ignore the TUPE aspect. The OP was offered a different job with different terms. TUPE protections, such as they are (which frankly isn't much) apply to the job that is transferring. They do not entitle someone to carry the terms of one role to a completely different role. The TUPE is a red herring.

I have already pointed out that many tribunal (and EAT) rulings have already upheld dismissals as fair where there have been quite substantial variations in pay, never mind conditions. Whether it ought to be the case or not, there is an element of "real world" impact on the way that tribunals interpret the law, because there are few circumstances where the law is clear cut, and what might be the case at one time may not be seen in the same light at another. So, for example, if you happen to be offered a job with a 10% pay cut as an alternative to redundancy in circumstances where you may not get a job for several months if ever (so, like a recession) then tribunals could - and more importantly, in the past, have - viewed that as a suitable alternative. Part of the rationale is that it is reasonable to think that 90% of pay is better than no pay, and part of the rationale is that if you don't like it and another job is that easy to get, that's what you should do. Neither of those considerations are explicit in law - that's the problem with the term "reasonable", it means what people want it to mean. And all too often the law and tribunals do not interpret it the way people want it interpreting.

Technically the OP has a couple of weeks left to make a claim. If they really want to put their job on the line. It's not something I would recommend, because I think they will lose, and I strongly suspect that their union will continue to tell them that is the case and refuse to support it legally. But they can do it if they feel that strongly about it.