Role changed after restructure: ask the expert

I understand that your position was recently put at risk of redundancy as part of a restructure of your employer’s business. Two colleagues were also put at risk of redundancy. As part of the restructure, your role has been changed from a regional role to a national one requiring overnight stays. I understand that you can’t do overnight stays as you are a single mum. The role also now requires demonstrations, which you are not trained to do.

You say that you have been ‘steered’ into a new role, which is 50% account management and 50% support, even though your background is in sales. Your employer is currently interviewing for your previous role. You are in your trial period but you are still doing your old job until the New Year and you have been told that it is ‘business as usual’ until then. You have questioned how you can tell whether the new role is suitable if you are not actually performing this role.

I also understand that your male colleague’s role has only changed slightly and he will be responsible for new business going forward, even though you have been with the Company longer and bring in more sales than him. Your male colleague did not want to apply for your role as it was a demotion. You were not given the opportunity to remain in your previous role.

I would firstly question whether or not this is a genuine redundancy situation. A redundancy situation arises where there is a diminished requirement of the business for employees to do a particular kind of work. You say that the Company is currently interviewing for your old role. This suggests that your old role may still exist and therefore there would not be a genuine redundancy situation and you should still be performing your old role and would not be entitled to a redundancy payment. However, if your old role has changed significantly (you suggest it will now be a national one requiring overnight stays and also that it requires demonstrations) then this would be a genuine redundancy situation.

If there is a genuine redundancy situation, your employer must follow a fair process in carrying out the redundancy procedure. If it does not, you may have an unfair dismissal claim. A fair process includes warning you of the potential redundancy situation, carrying out a fair selection process, consulting with affected employees and offering suitable alternative employment, where available. I understand that your old role would not be a suitable alternative role for you as it would involve overnight stays and demonstrations. I understand that you were not given the opportunity to apply for this role but you have stated that you would not be able to do it in any event due to your childcare situation.

I would therefore query whether the role that you accepted is a suitable alternative role for you. You say that you are two weeks into your trial period, which, as you will be aware, is four weeks, if it is a statutory trial period. The statutory trial period can only be extended for the purposes of retraining you in the new position. If you unreasonably refuse an offer of suitable alternative employment, you will lose the right to a statutory redundancy payment. My concern in your situation is that you (and your employer) cannot know whether the job is suitable for you if you are not actually performing the role.

My advice would be to submit a grievance to your employer and state that you believe that (further to your meeting with the MD) you are currently still performing your old role and employed on your old contract until the New Year. You should state that, as far as you are concerned, you cannot decide whether the new role is suitable for you until you have performed it. You should state that you are not currently in your trial period for this new role and that you will expect this trial period to commence in the New Year. You should ask for written confirmation of when the trial period in the new role will commence.

If your employer insists that you are indeed currently working a trial period for the new role, you need to decide whether you want to accept the new role or argue that it is not a suitable alternative role for you, in which case you would be entitled to a statutory redundancy payment and contractual notice but this would mean the termination of your employment. Given that you state that the new job is a demotion, it is likely that you would be able to argue that the new job is unsuitable for you and that your refusal to accept it was not unreasonable bearing in mind that you haven’t actually been performing the role. You may also have a claim for unfair dismissal based on the unfair process followed by your employer. Any such claim must be brought with three months of dismissal.

I also note that your male colleague’s role has only changed slightly and that he will be responsible for new business going forward, whereas you were not given the opportunity to perform this role even though you bring in more business than him. You could have an argument that your employer’s treatment of you constitutes unlawful sex discrimination if you were not given this role because of your sex. There may also be an element of indirect sex discrimination in your employer deciding that your old role now requires overnight stays as this is likely to put women at a particular disadvantage and your employer’s decision in this regard will be indirectly discriminatory if it cannot be justified as a proportionate means of achieving a legitimate aim. Any claim for sex discrimination must be brought within three months of the discriminatory act. I would also advise you to include your concerns in this regard in your grievance letter to your employer to give your employer an opportunity to resolve matters internally before you decide whether or not to submit a claim to the Employment Tribunal.

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• Self-employed Redundancy Restructure