Forced out of my job: ask the expert



Question

I currently work two days per week and have done so for four months. Before this, I worked a four-day week. I cut down my hours as we relocated and I couldn’t travel four days per week into central London. This was all agreed by my company and a new contract was issued. The company was bought out two months ago, and my new MD has said I need to work five days a week (with more responsibility but no salary increase) or leave. I have told them that a five-day week in London is impossible for me, so I am being made redundant. I am on one month’s notice and have been at the company less than 2 years. I am being offered my notice period plus five weeks’ salary. I feel I am being forced out of a job that I am good at (they tried hard to persuade me to take the five-day role) and enjoy and that the compensation offered is minimal. Can I do anything?


Answer by Laura Livingstone

From the sounds of it your contract was varied by mutual agreement 4 months ago which means that you are contractually obliged to work two days a week. I am assuming that when your company was taken over your employment was transferred through a TUPE transfer, therefore the existing terms in your contract of employment would continue to apply.

Following the transfer, the new MD of the company was not permitted to vary the terms of your contract to make you work 5 days a week rather than 2 unless your employer can show that it was for a reason unconnected to the transfer or if it was for an economic, technical or organizational (ETO) reason entailing changes in the workforce. The burden is on the employer to show this and if it is unable to you so then be able to resign and claim for constructive unfair dismissal.

If your employer could show that there was in fact a reason unconnected with the transfer or an ETO reason for your dismissal, it would then have to demonstrate that redundancy was both a fair reason for your dismissal and the procedure had been carried out in a fair way (e.g. you were consulted beforehand). If your employer did not satisfy both these elements then you would have a claim for unfair dismissal.

You must issue your claim for unfair dismissal to the Employment Tribunal within 3 months of the day your employment ended whether by way of dismissal or you could apply for reinstatement or re-engagement or monetary compensation. Reinstatement/re-engagement is rarely ordered particularly if relationships have broken down. Therefore it is more likely you would be awarded monetary compensation comprising of a basic award of a maximum of £400 for each year you worked there (so in your case £400 unless you reach 2 years at the time of leaving) as well as compensation for the losses you have suffered as a result of the dismissal capped at £68,400.

Without issuing a claim you would not be able to claim any more money than you have already received from your employer, unless your contract stipulated otherwise. This is because they are preparing to pay you more than statutory redundancy pay which would a maximum of £800, if you reach 2 years by the time you leave or notice if you are still under a year.

In addition, it may also be possible for you to claim director and/or indirect sex discrimination on the basis that you were being made “redundant” for refusing to work a five day a week job. You would have to provide evidence in order to show that this would disadvantage more women than men and/or that you had been treated less favourably.

Harriet Vaines assisted with this answer.

LauraLaura Livingstone is an employment lawyer for Davenport Lyons in London. Her practice focuses on contentious and non-contentious employment work, but she leans towards the non-contentious.  She has advised a wide variety of corporate clients in all areas of employment. Meet our Panel of Experts


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>