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Reduction of status and unfair dismissal

Reduction of status – Our Estate Manager came into the office this week to empty the bins (a very unusual thing for him to do) and it set me to thinking about what an employer could reasonably expect an employee to do and at what point could the employee throw in the towel and claim constructive dismissal on grounds of loss of status.

Reduction of status – Our Estate Manager came into the office this week to empty the bins (a very unusual thing for him to do) and it set me to thinking about what an employer could reasonably expect an employee to do and at what point could the employee throw in the towel and claim constructive dismissal on grounds of loss of status.

In cases of ‘suitable alternative employment’ (i.e. in redundancy circumstances) a drop in status is likely to make an offer unsuitable, even if pay and benefits are maintained. Examples of jobs that have been held to be unsuitable alternatives include a headmaster being offered a job as one of a mobile pool of school teachers; a canteen manageress being offered a job as a canteen assistant under a manageress employed by outside caterers; and a joiner who had been promoted to apprentice instructor being offered a job as a bench hand.

On the other hand, a tribunal held that the job of machine operator was a suitable alternative job to offer to a quality control technician who had previously worked as a machine operator and who routinely stood in for machine operators when they were on breaks.

But how flexible can we expect an employee to be in their existing role, and where is the line between a reasonable expectation and an unreasonable one? It is of course a matter of some subjectivity but using the learnings from various legal cases on ‘suitable alternative employment’ we can see that some expectations will be reasonable, some will not.

Now it would be unusual for an employee to resign on the spot and claim constructive dismissal for being asked to undertake a particular task that they perceive to be beneath them. But theoretically it is possible. The doctrine of trust and confidence is often used in employment law cases, the practical application here is to avoid breaching the trust of an employee by seriously undermining their status in the organisation. A simple example of this would be changing the reporting status of an employee from reporting in to the owner of the business to now reporting two management tiers further down. This would be regarded as a demotion, a substantial change and one which the employee may argue has effectively terminated their old employment, entitling them to claim unfair constructive dismissal. This would still be the case even if their pay remained the same.

To avoid a backlash, it’s important to consult the employee on major role changes before making them. By doing so, and making clear that you are thinking about making the changes (rather than intending to) you will give the employee an opportunity to state their objections if they have any and to decide for yourself what the risks are. It may be that the employee agrees, in which case the change should be written up and the employee asked to sign their agreement in advance of the change being made. If they do so there will be no realistic chance of a subsequent constructive dismissal claim succeeding.

Returning to the case of our Estate Manager, his duties routinely involve gardening and grounds maintenance, building maintenance and repairs. The underlying duty of his and all other staff roles here is to provide services to the tenant businesses that rent offices. Given that the contract cleaners were not present, other staff stepped in to empty the bins, this included Reception Staff, the Office Manager and the Estate Manager. As ever judgements are fact sensitive, in this case and given that additional information, I would satisfied that it would be perfectly reasonable to ask him to empty the bins. Not that he was complaining, as he is a very co-operative chap!

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