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HR/Employment Law Question

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DJD200

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Hello

I'm looking to ask something of someone who has experience of HR or employment law.
This is non railway related. I have a colleague at work who has a grievance running about our regional manager. He is not the only one, my supervisor has raised a grievance and I have made a complaint about the same individual. My colleague has been off work for over a month with work related stress due to an incident with the regional manager.
We have been working, since we joined the company, on different sites. Let's say I have been on site a, my colleague on site b, both close to home.
I have recently been told by my supervisor (in front of three other witnesses) that the regional manager, despite having the budget, is holding off employing someone on site c, about an hour and a half round trip away, and he plans to move my colleague from site b to site c, in the hope he will not accept this journey and leave the company, and also employ someone new to work on site b.
My question is: would this be a form of constructive dismissal? My colleague hasn't caused trouble on site b and hasn't fallen out with his team mates there.
I also have the dilemma of whether I should tell my colleague what I have heard. I don't want to implicate my supervisor or myself but I feel he has the right to know.

Hoping the above makes sense, would be grateful for any advice.

DJ
 
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RT4038

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Hello

I'm looking to ask something of someone who has experience of HR or employment law.
This is non railway related. I have a colleague at work who has a grievance running about our regional manager. He is not the only one, my supervisor has raised a grievance and I have made a complaint about the same individual. My colleague has been off work for over a month with work related stress due to an incident with the regional manager.
We have been working, since we joined the company, on different sites. Let's say I have been on site a, my colleague on site b, both close to home.
I have recently been told by my supervisor (in front of three other witnesses) that the regional manager, despite having the budget, is holding off employing someone on site c, about an hour and a half round trip away, and he plans to move my colleague from site b to site c, in the hope he will not accept this journey and leave the company, and also employ someone new to work on site b.
My question is: would this be a form of constructive dismissal? My colleague hasn't caused trouble on site b and hasn't fallen out with his team mates there.
I also have the dilemma of whether I should tell my colleague what I have heard. I don't want to implicate my supervisor or myself but I feel he has the right to know.

Hoping the above makes sense, would be grateful for any advice.

DJ


What is the distance between site b and site c?
Does the employee have an employment contract citing site b is their workplace, and are there any clauses in the contract permitting the employee to be moved between sites at the behest of the employer?

The supervisor may be making mischief - presumably there are no independent witnesses as to why the supervisor thinks/knows of the regional manager's intent?
 

47421

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In principle enforcing a mobility clause for an ulterior motive certainly could amount to constructive unfair dismissal

How long has the affected employee worked for the employer? Usually need 2 years before can bring an unfair dismissal claim - exceptions apply if claim is sex/race/disability discrimination
 
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DJD200

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Hi, and thanks for the responses so far.
I haven't checked the distance but it would be deemed "reasonable", and yes they can move someone within a reasonable distance. My colleague however has no specialist skills or qualifications required for site c. This does not appear to be for operational reasons .
It was a conversation between manager and supervisor, and there were probably no witnesses. This is how the manager operates. He is a bully, and vindictive. I would like to trust the supervisor's word, but yes he could be making mischief.
I'm sure my colleague has been with the company more than two years.
 

47421

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https://www.dentons.com/en/insights...in-employment-contracts-reasonableness-is-key

If there is no good objectively justifiable reason to require employee to move then I think it is likely that an employment tribunal would find that it was unreasonable.

And exploiting a mobility clause as a way of encouraging/forcing an employee to leave is classic constructive dismissal.

Is the employee a member of a union?

Also have they got any legal helpline included as part of house insurance?

How far apart are these sites? In the case discussed in link above the move was Greenford to Leatherhead, which was found to be unreasonable

Also consider asking Citizens Advice Bureau - hit and miss but if you get right advisor can be very good
 
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mailbyrail

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Reasonable depends upon a whole host of criteria: -
how do they travel currently? Do they have childcare, dependents, education to consider?
How do the journeys to the two work places compare?
What does their contract say about work location?
Are there any differences between the two locations - would they impact your colleague in any way?
Are there any agreements, precedents - written or not - about how changes happen?
Will any additional costs be incurred?
Could anybody else be considered suitable?
Could any credible business case be made to support the change?
Would the selection be discriminatory in any way?
What records and details of 'incidents' has your colleague documented?
What details were given to the employer for the stress absence? What actions, if any, did the employer's take as a result?
What changes to terms and conditions would be part of the move?

Does your colleague have any support mechanism to build a case - a trade union, professional body, insurance cover, access to legal support?
Do they have over two continuous years as an employee?

Even if all the above present a very 'unreasonable' picture, it's still for your colleague to resign and then convince an industrial tribunal that the reason their employment ended was directly because of the employer's actions. Naturally it's for the employer to argue why it wasn't.
Attendance at a tribunal is stressful in itself - if they are already suffering from stress, could they take even more?
Does the employer have any track record of facing such claims? Do they fight them or settle?

If the Tribunal agrees with the claim they could award compensation or make some other award. If they didn't, your colleague would get nothing and have no job, having gone through a difficult time along the way.
 

DJD200

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Reasonable depends upon a whole host of criteria: -
how do they travel currently? Do they have childcare, dependents, education to consider?
How do the journeys to the two work places compare? He drives, has kids. There would be loads more traffic on the journey.
What does their contract say about work location? Contract? I've never seen one.
Are there any differences between the two locations - would they impact your colleague in any way? Work wise no difference.
Are there any agreements, precedents - written or not - about how changes happen? Not that we've ever seen.
Will any additional costs be incurred? Considerable fuel costs plus potential maintenance and insurance.
Could anybody else be considered suitable? Definitely, a new employee who lives much closer.
Could any credible business case be made to support the change? Not that I can see.
Would the selection be discriminatory in any way? None of the usual discrimination factors, unsure about any others (apart from vindictiveness).
What records and details of 'incidents' has your colleague documented? The one incident of being filmed at work without consent, I'm not sure if there is any more to the grievance.
What details were given to the employer for the stress absence? What actions, if any, did the employer's take as a result? Unsure. Haven't heard of any actions taken.
What changes to terms and conditions would be part of the move? None.

Does your colleague have any support mechanism to build a case - a trade union, professional body, insurance cover, access to legal support? As far as I'm aware, none of these.
Do they have over two continuous years as an employee? I'm pretty sure he has.

Even if all the above present a very 'unreasonable' picture, it's still for your colleague to resign and then convince an industrial tribunal that the reason their employment ended was directly because of the employer's actions. Naturally it's for the employer to argue why it wasn't.
Attendance at a tribunal is stressful in itself - if they are already suffering from stress, could they take even more?
Does the employer have any track record of facing such claims? Do they fight them or settle? None that I know of, but he seems to be the sort who would quit instead of taking on the journey every day. And I believe this is exactly what the manager wants, for him to quit.

If the Tribunal agrees with the claim they could award compensation or make some other award. If they didn't, your colleague would get nothing and have no job, having gone through a difficult time along the way

Sorry I should've probably put my answers in bold, not very good with using quotes!
 

RT4038

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Sorry I should've probably put my answers in bold, not very good with using quotes!

One thing I don't quite understand:
In #4 you say that the distance involved would be considered 'reasonable', yet in #7 you say that 'considerable fuel costs' would be incurred.
How are these two reconcilable? i.e. a 'reasonable' distance would unlikely incur 'considerable fuel costs'.
 

mailbyrail

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I'm not an employment lawyer, my own involvement has been from the employer's side helping them manager their way through situations like this to avoid things getting to the state of a claim arising. (I did work for many years in HR, but another specialist area within it.) It was usually as a result of a line manager taking matters into their own hands and not following company procedures and employment law that things started and that's when my assistance helped prevent things escalating further. It's been a while since I've had any direct involvement and I don't have any access to my former work reference materials.

In essence, employment law is about is about protecting workers in a job. Your friend has a job and a contract, even if they have nothing in writing. If there is nothing in writing, their employer is almost certainly not complying with employment law.
Currently your friend's employer is complying with their side of the contract by providing an opportunity to work, your friend isn't because they are off sick.

Without anything to indicate to the contrary, your friend's job is a location X as a Y on a wage/salary of Z and that can't be changed unilaterally.
Any changes to any of those items has to be in accordance with a contract (even if only a verbal contract), any agreements (eg with unions) or with your friend's consent. Without any one of those, he can't be moved unilaterally from his current position, it's his job. That's not to say nothing can change, but it must be done correctly, otherwise employment law is on your friend's side. However, being off long term does not help his case, compassion is not a feature of employment law. If he is 'offered' the job in the new location, subject to the above qualifications, he does not have to accept it. He would have to consider the consequences which might arise if he did not accept however.

From your responses, it seems a chat with someone would be in your friend's interest - an employment lawyer or employment specialist.
As I said, it's because employers haven't followed necessary procedures that employees have a claim, it's for a Tribunal to decide if the claim is upheld.
The pain, grief and cost for both sides usually leads to a solution, but it can be difficult getting to that place.
 

DJD200

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Thank you for the above replies.

The traveling distance and time according to Google is an extra 21 miles and 53 minutes, not taking rush hour into account.

Clearly the manager thinks this is reasonable, but that's not really what I'm questioning, as much the replacing him on his original site (presumably so he couldn't be put back there).

I might add these sites are not owned or operated by the company, it is contracted to work there.

"a line manager taking matters into their own hands and not following company procedures"

This sounds exactly like what could be going on and been going on for years.

"Without anything to indicate to the contrary, your friend's job is a location X as a Y on a wage/salary of Z and that can't be changed unilaterally.
Any changes to any of those items has to be in accordance with a contract (even if only a verbal contract), any agreements (eg with unions) or with your friend's consent. Without any one of those, he can't be moved unilaterally from his current position, it's his job. That's not to say nothing can change, but it must be done correctly, otherwise employment law is on your friend's side. However, being off long term does not help his case, compassion is not a feature of employment law. If he is 'offered' the job in the new location, subject to the above qualifications, he does not have to accept it. He would have to consider the consequences which might arise if he did not accept however."

Very interesting. He certainly wouldn't be asked his consent or offered the role. This is similar to my situation where I was moved from site to a mobile job. All I saw - not received - was a rather impersonal email saying I was to move. I certainly wasn't asked or offered the role. Admittedly I didn't argue the case at the time because I thought it was temporary due to covid. Now my supervisor has said I won't be returning to site in the foreseeable future, and I'm beginning to question if- especially with new safety measures in place - this was a genuine operational decision.

I think I need to obtain my contract and terms and conditions from HR, and consider advising my colleague to do the same.
 
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Iskra

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In principle enforcing a mobility clause for an ulterior motive certainly could amount to constructive unfair dismissal

How long has the affected employee worked for the employer? Usually need 2 years before can bring an unfair dismissal claim - exceptions apply if claim is sex/race/disability discrimination

That is a massive assumption. Perhaps the regional manager simply can see the bigger picture or has more knowledge of forthcoming events.

If there is a mobility clause, then there is very little that can be done here.

The OP involves a lot of hearsay. You need to work based on hard facts only, not assumptions.
 

mailbyrail

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Certainly without knowing contract details it's impossible to say much more.
If there is a mobility clause that says something along the lines of your workplace is anywhere the employer determines then everything is different to if it says your normal place of work is location X.
If your job is a mobile technician providing outsourced services to clients then it's totally different to being a a static technician and different considerations apply. What's 'reasonable' under one instance is not under the other.
 

47421

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That is a massive assumption. Perhaps the regional manager simply can see the bigger picture or has more knowledge of forthcoming events.

If there is a mobility clause, then there is very little that can be done here.

The OP involves a lot of hearsay. You need to work based on hard facts only, not assumptions.

Fact of a mobility clause is far from the end of the matter, as discussed in the leading case mentioned above Kellogg v Fitton, Employment Tribunal will consider all the circumstances to determine whether the employer has acted reasonably in seeking to rely on the clause.

As others have mentioned lots of different considerations can be taken into account to determine what is reasonable. Employment Tribunal much less focussed on actual words of contract than a court considering a pure commercial contract between corporates.

Also worth remembering that usually costs are not awarded in an Employment Tribunal. That offers a tactical advantage to an employee. Employee can bring claim with very little legal cost. Employer will invariably instruct expensive lawyers and dealing with claim will be a real inconvenience to management. This is why many claims are settled more or less in favour of employee. It is not to say however that bringing a claim is easy or stress free, it is not, but there may well be something to be done here.
 
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