Should acting-up role be given to me?

I was asked in 2019 to undertake additional duties and was paid a higher rate and have been doing this role since. Lately, the senior management team have decided that they would like to make this role permanent at the same grade I was receiving. However, they have opted to “internally” advertise the role and have invited me to apply. Could they potentially offer the role to someone else or should it be offered to me?

Employee Rights Employment Equality Job Businessman Corporate Co - shift patterns

 

I understand that you have been ‘acting up’ in a role for about two years by taking on additional duties which was reflected with increased pay. It appears that, before you took on the role, it theoretically did not exist within the company structure, but the company has now decided to make it permanent and formal processes have been undertaken to make the role a “live” internal vacancy, which you have been invited to apply for.

The starting point would be the extent of the conversation you had with your employer prior to taking up those additional duties and receiving the accompanying rise in pay. 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 position to avoid any ambiguity. It is not clear whether any such written agreement was put in place, but I infer from your query that there wasn’t.

In the absence of an express agreement stating that you were to carry out the role on a permanent basis, your employer can advertise the role, particularly where it appears that they have only just made the decision to make that role permanent. Furthermore, it may be that advertising the role internally is company policy following any job evaluation. That said, you should be a strong candidate for the role given that you are carrying it out and have arguably shaped the role in the last two years.

In the event that you are not offered the role, it may be possible for you to argue that this role had crystallised into new contractual terms through custom and practice due to how long you were in the role for and in the absence of any communication regarding an end date for the role. You would therefore be arguing that not being offered the role amounts to a breach of contract entitling you to resign and claim constructive unfair dismissal. Please note that constructive unfair dismissal claims are notoriously difficult to win. I would not advise you to resign, however, without you taking specific legal advice, including discussing where there are any other potential claims.

*Albert Mould assisted in answering this question.



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