My employer is advertising my job. Where do I stand?

DAS Law’s Lauren Woolf explains.

23rd January 2020

I signed up for a job agency and I found a job on the website an advertisement for a job that is similar to the job I am currently employed for in my company. The company has not brought it to my attention that they are dismissing me or making me redundant. What should I do?

If there is strong evidence that the company is advertising your current job without telling you, then it may be raising it with your employer informally before you do anything else. If you aren’t happy with their response, you can raise a formal grievance with them.

Raising a grievance

A grievance is a formal complaint and you should raise this with your employer in writing.  Your aim is to make them aware of how strongly you feel about a situation.

Whilst you should allow your employer the opportunity to resolve the matter, they should deal with your grievance without any unreasonable delay and in line with ACAS and their own procedures.

How to raise a grievance

Unfair dismissal and constructive unfair dismissal

You can only usually bring a claim for unfair dismissal if you have worked for your employer for at least two years. Your dismissal may be unfair if your employer does not have a fair reason for dismissing you or does not follow the correct process in reaching the dismissal.

Another legal argument available to an employee with over 2 years’ service may be constructive unfair dismissal. Constructive unfair dismissal is where you feel you are forced out of the company as a result of your employer’s conduct.

As an employee, you would need to show evidence that your employer has substantially breached the contract. This substantial breach may be one serious incident or a series of events that has ultimately led to the resignation.

If you feel you have been constructively dismissed, you should consider resigning with immediate effect and you will have to resign when the breach occurs. If you do remain in your job, or provide notice, then it could be considered that you have accepted your employer’s conduct.

More on constructive and unfair dismissal

Bringing an employment tribunal claim

There are very short limitation periods to bring employment tribunal claims.  The limitation for bringing both an unfair dismissal claim and constructive unfair dismissal claim is three months less one day from the date of the dismissal or the date of the resignation.

Your employer should only consider making you redundant if there is a genuine redundancy situation; for example, your role is no longer there or if the company is closing. As well as establishing a genuine redundancy situation, your employer has a duty to conduct a fair redundancy process.  

Your employer should also inform you of any suitable alternative roles if they are available. If your employer advertises a role which is essentially the same as your role, then you should raise this with your employer whilst questioning the fairness of the redundancy.

Only those employees who have at least 2 years’ service are entitled to any redundancy payment. Redundancy payments are based on an employee’s age and length of service.

If an employer is treating you less favourably due to age, disability, ethnicity or any other protected characteristic, then this may give rise to a discrimination claim under The Equality Act 2010. Discrimination can also arise in forms such as victimisation, harassment or if a company policy puts you at a disadvantage.

A discrimination claim should be brought within three months less one day from the last act of discrimination.

The majority of employment tribunal claims require an employee to engage in mandatory early conciliation via ACAS before bringing a tribunal claim. They will also consider whether you have exhausted any internal grievance/appeal procedure.

We would highly advise that you seek legal advice before proceeding with a claim in order to discuss your options and any action you need to take next.

How we can help

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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If you feel forced to resign, this may count as constructive dismissal. If you are dismissed in breach of the terms of your employment contract, this is known as wrongful dismissal.

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When an employer doesn’t have a good reason for their decision to dismiss someone, or doesn’t follow the appropriate procedures when doing so, the dismissed employee may be able to bring a claim for unfair dismissal.

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If you have a problem at work that has not been resolved through informal discussion, your next step should be to raise a formal grievance through your employer's grievance procedure. This means they must take steps to fix the issue.

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