consultation process

[rogerthedodger]

Hello, I was hoping for some guidance please, I have been off work long term due to work related stress. The employer wants to hold a return to work interview and a consultation about the proposed reduction in my hours at the same time.

 

I refused to go to the first consultation as they said they had asked for details from occupational health on how to do any risk assessments but they did not have the details yet. So I thought there's no point going to a consultation if they don't know how to handle the situation yet.

 

They say I'm in breach of contract by refusing to consult, and they are giving me a second chance which is fine, but they said in the letter that even if I didn't come to the meeting or refused to comment they would terminate my current contract anyway and start me on the new reduced hours one.

 

Do you think I've been reasonable in refusing to attend the first consultation meeting beacause they didn't carry out the risk assessment, am I right in thinking the return to work interview should be held before the consultation and are they entitled to just reduce my hours without my agreement (the reduction is about 43% and they will not budge on this so it's more like a dictation rather than a consultation)?

 

Thank you for your time

[Sidewinder]

Do you think I've been reasonable in refusing to attend the first consultation meeting beacause they didn't carry out the risk assessment, am I right in thinking the return to work interview should be held before the consultation and are they entitled to just reduce my hours without my agreement (the reduction is about 43% and they will not budge on this so it's more like a dictation rather than a consultation)?

 

 

If a risk assessment was agreed as part of any return to work programme then it is not unreasonable to expect this to be completed prior to agreeing when and how you should return to work

 

As for the reduction in hours it seems drastic, but providing that adequate notice is given, the employer can terminate any existing contract and offer to re-engage on new terms. It is still a breach of contract, but in offering to re-engage any loss is mitigated which would make it very difficult to gain anything from a Tribunal claim. The 'consultation' will be documented in writing and would serve to prove in the event of legal action that all attempts were made to gain agreement to the change before it was necessary to enforce it.

[rogerthedodger]

Thank you very much Sidewinder, I was wondering if they have the right to reduce hours from me and give them to casual workers (I am a contracted employee). I also have claims with ACAS for discrimination and victimisation, so this wouldn't have gone down well. I won't go back on the reduced hours contract as it's not worth the stress. I've been bullied by members of the management team including HR so they would have to make me redundant (but would this be a true redundancy as I was told by a colleague that if the job still exists then it's not a true redundancy it would be unfair dismissal). Also, if I took redundancy can I still pursue my claims in the ET?

[becky2585]

Thank you very much Sidewinder, I was wondering if they have the right to reduce hours from me and give them to casual workers (I am a contracted employee). I also have claims with ACAS for discrimination and victimisation, so this wouldn't have gone down well. I won't go back on the reduced hours contract as it's not worth the stress. I've been bullied by members of the management team including HR so they would have to make me redundant (but would this be a true redundancy as I was told by a colleague that if the job still exists then it's not a true redundancy it would be unfair dismissal). Also, if I took redundancy can I still pursue my claims in the ET?

 

I don't think its a redundancy situation per se. It's a variation of contracts due to business needs, which is a little different. It's usually viewed as more of an attempt to avoid redundancies by implementing alternative, shorter working hours.

 

Tricky situation for the employer, though, because of your absence from work. However, they've given you an opportunity to be consulted with over the change. If you don't take that opportunity, the employer would arguably still have fulfilled it's obligations and could terminate your contract and offer re engagement on new terms, as above.

 

The only way you would be unable to pursue your claims would be if any "redundancy" acceptance was under a settlement agreement, where you would be waiving your legal right to claim. Otherwise, you could just pocket the cash and still issue proceedings.

 

If you have ongoing discrimination claims, it's worth seeing whether you are the only affected employee, as that could give you a further argument for victimisation if you're being singled out.

[rogerthedodger]

Hi Becky,

 

Thank you for your reply, I appreciate your help. I don't think this is a variation as the change is 43%, they tried to enforce these changes on me before I went sick with all the stress. There are no business reasons as I checked it out, they were saying that I had too much responsibility and wanted to spread it around a bit, so they are trying to take my contracted hours and give them to casual workers, as and when.

 

If I said that I refused to accept the new contract could this be viewed as a resignation and could that absolve them from making notice and redundancy payments? I've been there donkeys years and it is worth a fair bit, so they will probably try anything to try and wriggle out of paying it.

Edited November 20, 2014 by rogerthedodger

[stevemLS]

However, if you remain off sick, there is nothing to stop them dismissing you on that basis. You would not then be entitled to redundancy payments.

 

You need to tread carefully. I don't think you are in quite as strong a postion as you seem to think.

[rogerthedodger]

Hi there, thank you I'm not off sick, I've been fit for work for three weeks, they have been prevaricating my return to work - I've just been waiting for my return to work interview and they want to combine the consultation with it.

[becky2585]

Hi Becky,

 

Thank you for your reply, I appreciate your help. I don't think this is a variation as the change is 43%, they tried to enforce these changes on me before I went sick with all the stress. There are no business reasons as I checked it out, they were saying that I had too much responsibility and wanted to spread it around a bit, so they are trying to take my contracted hours and give them to casual workers, as and when.

 

If I said that I refused to accept the new contract could this be viewed as a resignation and could that absolve them from making notice and redundancy payments? I've been there donkeys years and it is worth a fair bit, so they will probably try anything to try and wriggle out of paying it.

 

No, it's unlikely to be viewed as a resignation.

 

Ultimately your options are to accept the new terms, refuse the terms and work under protest (which may not be practicable given the hours!) or refuse to sign and wait to be dismissed and re engaged (and you could issue tribunal proceedings for unfair dismissal whether or not you accepted the new contract).

[SabreSheep]

How can this situation impact on your discrimination and vicitimisation claims.

Not sure posters have realised this is a more complex issue.

The main quesiton is are they doing this to anyone else? And did this process start after your claims went in?

[Emmzzi]

it's perfectly possible to be consulted on redundancy or hours changes before you have returned to work. Do one without the other if they are not ready for you to go back.

 

I'd also want to be clear you are on medical suspension if your doctor says you are fit to go back, so would write in and ask for clarification on that.

[rogerthedodger]

Hello, they aren't victimising anyone else, and this started when I complained about the proposed change to my hours. I was both bullied and ignored which made me sick with stress and the anxiety aggravated my asthma. I went off sick before the consultation took place. I lodged a grievance though and I'm going through that now while they sort out my return to work and consultation. By the way, I suppose it's normal for a grievance response to admit no liability, but no investigation was carried out and none of my specific issues were dealt with. I'm going to appeal but I think it's probably futile.

 

Oh I would like to add that they have actually changed their business reasons for the second attempt at consultation. I was off sick for about five months, back then they said their reasons were to spread the responsibility around (as when I go away I'm the only one doing the job and I'm hard to find a temp for) but now they are citing a small improvement in footfall as the business reason for cutting my hours.

 

Could a judge say that a new contract with a 43% drop in hours (this equates to a loss of about £8,900 gross pay not including company holiday pay and pension etc) is a suitable alternative (just in case I have to go down the unfair dismissal road)?

Edited November 21, 2014 by rogerthedodger

[rogerthedodger]

Hello everyone, they terminated my contract because I objected to the drop in hours and in the new contract there was a clause that stated that I couldn't work anywhere else that was similar in nature without their agreement. It's so acrimonious now I don't trust them to allow me to work anywhere else. I can't afford to take a 43% drop in wages so I declined their offer. They said they would put my termination in writing, but no mention of redundancy payment. I'll phone ACAS tomorrow and see what I have to do next Thank you all for your replies, I will keep you posted.

[Sidewinder]

It sounds very much as though redundancy was not a consideration - at the end of the day if the job still exists, albeit with reduced hours) then at cannot be a genuine redundancy situation and it would solely be down to the employer taking a sympathetic view if that were to have been offered. If the change was to save money then I don't think it likely that they would wish to be 'sympathetic' where this would undoubtedly cost the money that they were trying to save.

 

With regard to what action is possible, much will depend on the way that the employer has acted, so make sure that you gather as much evidence and information as possible - letters, emails, phone transcripts - all may be necessary to prove that the employer's actions were wholly unreasonable. Who else was affected, for example? How many other employees had their pay frozen? Was this across the board including management? What level of consultation was offered?

 

Insofar as restrictive covenants over future employment are concerned, much would depend on the nature and scope of the restriction. For how long would you be bound by the clause? Over what geographical area? What level of information do you possess and how much damage would be caused to your (former) employer's business were you to take that to a rival. Strictly speaking any restriction should serve only to allow the employer to protect themselves from harm following your dismissal, so the wording is crucial and you often find that there would be little possibility of them successfully obtaining an injunction if they were to enforce the clause. It is also the case that their claim may be damaged were you not being compensated for the undoubted restraint of trade that would be caused by you not being able to work in your chosen profession - that is why many organisations use gardening leave as a tool to protect against employees leaving to work for rivals.

[rogerthedodger]

Hello Sidewinder, thank you very much for your reply, well the business reason they gave for wanting to reduce my hours was that they wanted to spread my responsibility around as when I am away or sick then I'm difficult to cover. It wasn't a reason to save money as such. The restrictive clause was in the new contract, so effectively they wanted to reduce my pay by 43% and stop me from working for other employers to make up for the shortfall in pay unless they agreed in advance. I have claims against them for victimisation and discrimination with lots of evidence including recordings of meetings (not concealed recordings) so they really don't want me around now and I suspect if I did manage to find other work they would stop me in an effort to get me to resign.

Edited November 25, 2014 by rogerthedodger