facing redundancy but comparable job advertised internally

[duckyfuzz]

I'm hoping someone out there can help, I have been in negotiations with my employers for some time now over redundancy - the job I do comes to an end soon, but they have not been able to find anything internally. Now the only other job in the organisation that is comparable is vacant. I meet all the JD criteria and have far more experience (length and breadth) than the person I think they want to appoint to the post (who is a favourite of management). What, if any, are my rights?

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any experts out there tonight?

last bump before bed

bumping for you but no advice, sorry ducks.

bump sorry no advice

Don't know about rights, but have you asked your employer about it?

You should be told about available vacancies during your redundancy period, and it seems you do know about them, so that's fine. If your employer has suitable alternative employment available but doesn't offer it to you, that might be unfair dismissal.

Have you applied for this job? What's the problem exactly, are they saying it isn't suitable for you?

"it seems you do know about them, so that's fine"

surely there's a difference between "knowing about" and "being told about". Sounds to me like the OP has not been offered this position, and the fact it is vacant and perhaps "earmarked" for someone else seems to me to be pointing to them being ready to move the "chosen" candidate into that position just as soon as OP is no longer there.

Smells bad to me that they are doing this.

I remember one firm I worked for making 9 people redundant, including one hardware engineer whose face 'didn't fit' (or maybe it was his Geordie accent) with the MD.

Within 2 months they were advertising for a new hardware engineer, so the redundant one claimed unfair dismissal. Company claimed the new guy was a software engineer (a lie) and that he was therefore not taking Geordie guy's job.

Went to a tribunal, where Geordie pulled out printed advert from an electronics weekly, clearly saying they wanted a Hardware Engineer.

He had in the meantime move back to Sunderland and taken a job on a survey vessel on the North Sea (later going to warmer climate, over the equator) but was able to get a lump sum of a few thousand for unfair dismissal, partly reduced as he had found work.

There's no legal requirement to specifically list vacant posts in a letter or anything. Best practice, yes, but as long as they are openly available to employees, that would be fine in terms of information. The OP doesn't say she hasn't been expressly told anyway - she may well have been for all we know.

And yes if there is a suitable post available and it isn't offered to someone who is redundant, that might be unfair dismissal. But the OP hasn't 'not been offered' it just yet. It's not clear whether she's even expressed an interest or an opinion that the post is suitable for her. It doesn't sound as though it's been offered to anyone, and we don't know about this other person, whethe their existing role is redundant as well, how they are planning to select for this vacant post, whether they feel it's not suitable for the OP and is why they've not highlighted it. All sorts of variables at the moment.

Thinking about this some more, it's about what to focus on. I think whether this vacancy was outlined in a letter, or seen on a vacancies board or similar isn't the point to focus on really. It would be different if ducky had been made redundant and subsequently found out that there had been a vacancy all along that had been concealed from her, as in your example NetworkGuy.

But at the moment ducky isn't redundant, she knows there is a vacancy and the vacancy isn't filled, so the focus should be on finding out why she has seemingly not been considered, and remedying that. If she hasn't done so already ducky needs to contact her employers and mention this vacancy and highlight the fact that she feels it would be suitable alternative employment for her. Next actions will depend entirely on their response - they may claim it isn't suitable, or isn't vacant, or may be happy to place her in it and may have overlooked her unintentionally.

True - I was rather jumping the gun that she might have deliberately been 'kept in the dark' but ducky might have only heard via some 'leak' of information, ie it may not yet officially exist as a vacancy even.

Since ducky's job 'comes to an end soon' I'm thinking she has been given some redundancy notice, or at the very least, formally informed that her job will be redundant from xx/yy/2010 (perhaps end of this month, for all we know).

Sounds like experience-wise the firm should have considered her, so I will have to give them the benefit of doubt for now, and not speculate too much!

Come back duskyfuzz - your input is needed!
(Guess that will have to wait until after office hours at least.)

Yes am at work now will be on later tonight sorry if I don't respond til then!
I am welcome to apply but haven't been asked to iyswim, I have told them I would like to be considered my jd and title v similar to vacant role I just don't know how far their obligation to me extends notice had been given for Aug

Sorry for poor punctuation am on phone!

Right, back from work, DTs asleep, now I can focus! Thanks for the advice so far.

The job I currently do ceases to exist at the end of August. A vacancy was advertised yesterday through an email to all staff. I knew this vacancy was coming up and went to see my boss at the end of May to ask if this could be a way to avoid my redundancy. He muttered about talent management, which is all very well, but will involve promoting someone less experienced (but more on message). He knows I am capable of doing it, if he wanted me to he could just offer it to me, but hasn't. There is simply no way the person I believe will be offered it is better qualified, possibly equally, but in different areas. I think they will use these areas as the criteria for selection. What I don't know is how far he's obliged to go and whether I have any comeback if I apply and am not offered it. I can't not apply, as this seals my fate anyway.

The key difference you need to get them to commit to is whether the role is a suitable alternative role or just an alternative. A rough rule of thumb is that 80% role match would make it suitable, alongside some key elements like location, salary level etc. The critical thing is that it is the employer's role to decide whether a job is suitable alternative or just alternative.

If it's the former, they're obliged to offer it to you but if it's the latter, then you can ask to take it on but it would be feasible for them to hire someone else instead.

If they say it's only an alternative but you believe it's closer to your role than that, you would need to challenge that (union representation if you have it can help with that) but ultimately it is their call if it's not cut and dried. HTH.

I thought that there was also an element of training if one is offered an alternative position, which means that whether 'on message' or not, duckyfuzz should be able to have a stab at it, perhaps on a trial basis for a month (I was half listening to a phone in on Radio 4 this afternoon).

When boss muttered about 'talent management' was this the job description (talent as in the presenters / musicians / actors ?) or was it some other meaning ? Sorry if I'm just 'out of touch'...

Best route seems to be to apply but as a different question in the meantime, is there a union presence in your firm ? Might be worth using iPlayer to listen to today's Moneybox phone in (R4 15:00)

of course, just thought of it meaning an internal promotion of 'up-and-coming' staff, hence internal 'talent' (and dismissing duckyfuzz from being in that category).

sorry, duckyfuzz, didn't mean that to be so blunt, though as you said, your boss could have offered you that job and didn't.

It's not completely the employer's call whether a job is suitable. They can decide not to offer it on the basis that they don't believe it is suitable, but if the employee believes it is suitable, and challenges the redundancy on that basis, the Employment Tribunal will take a view as to whether the role is suitable or not and whether the employer was reasonable not to offer it.

Similarly, if an employer offers alternative employment and refuses to pay redundancy on the grounds that they believe the alternative is suitable, the employee has the right to say that they don't believe it is suitable, and again, if the employee took the employer to a tribunal for failure to pay redundancy, the tribunal would take a view as to whether the employer was justified in doing so.

Ducky you need to apply for the job as you said, and I would suggest you make it clear in your application that you believe this role is a suitable alternative for you. This will force them into explaining why it isn't suitable if they don't want to appoint you.

If they say you are not suitable for the role, you can request a 4-week trial period in it to establish whether you are or not.

Thanks all this is really helpful. I am currently going through the jd for the vacancy and annotating it with my experience and current jd. Talent management is about up and coming staff, which apparently I'm not any more! I am in a union and am seeking advice, employers persuaded me to cancel a meeting arranged with both sides because negotiations were progressing - needless to say I regret this now!

I wouldn't need any training to do the role, the salary is slightly higher but this is due to my pay not increasing at all in 5 years (which is another matter) if it had gone up as expected I would be on same rate as vacancy

That might be a bit of a sticking point then, or an excuse they might use anyway. Whether you believe you should be earning more for your current job isn't really relevant tbh. Your salary is what it is, and pay is one of the factors looked at when deciding whether a job is 'suitable'.

However if the work content, skills and experience required, other terms and conditions, seniority level, hours and location of the other job match your existing job, that will all obviously give a good indication of it being suitable.

Thanks flowery the gap is 3k everything else matches

Best of luck with this duckyfuzz. Fingers crossed here for you!

Thanks! Is the 80% rule standard? I've heard it a few times