I have worked for my current company for over five years, two of which have been covering a supervisor who was placed on another job as a temporary position. This was agreed verbally, but there is nothing in writing and no time limit was agreed. My question is now they are wanting to place the supervisor back in his old position and knock me back to my old job. Can this be done since I was not given a contract for the temporary position nor was my old supervisor for their new position. Do two years on the same job covering another person count as temporary in employment law when they have placed him in a completely different role? There would be a large financial decrease to myself with this happening.
I note from your question that the terms of the ‘temporary position’ were agreed orally. In these situations it is often beneficial for both the employer and employee to have entered into a written agreement clearly defining the terms and length of the ‘temporary position’ to avoid any ambiguity such as the issues you raise in your question.
Because you have worked in the same role for the past two years you may have potential grounds to argue that your current position has crystallised into new contractual terms through custom and practice and now any change without your consent would be a breach of your newer contract. If your employer insists on the change without your consent, you could consider a claim for breach of contract. If you continue working for your employer, you would need to make it clear that you are working under protest. If the change is significant (which it appears to be here), it may be that you would be deemed to have been dismissed and may be entitled to claim unfair dismissal as well as breach of contract. Another option for you would be to resign and claim constructive dismissal. This would be if the imposition of the change fundamentally breaches your contract of employment and you resign in response to this breach. I would not advise you to resign, however, without you taking specific legal advice.
Please note that you would need two years’ continuity of employment to claim unfair dismissal or constructive unfair dismissal.
I would suggest that you review your employer’s formal HR Policies and Procedure to see if it gives any guidance on the length of internal secondments or any of the other points you raise. I would also suggest that you hold an informal meeting with your line manager to raise your concerns. If this does not solve the problem then I would suggest that you consider raising a formal grievance about the way your employer has handled this situation.
If this does not resolve the issue, I would strongly recommend that you seek further independent legal advice in respect of your situation. Please note that claims for unfair dismissal or constructive dismissal must be brought within three months of your termination date. You will also need to go through the Acas early conciliation process before any claim can be lodged.
Should you require any further clarification on the above points then please contact Tracey Guest on 0161 672 1425.
*Helen Frankland assisted in answering this question.