Weekly dilemma: demoting an employee

Q A member of my department keeps leaving work early to pick up her son who has been getting into trouble at school. She is now beginning to miss important meetings and appointments. Although I want to be sympathetic, I am considering demoting her to a more junior and less demanding role. Can I do that?

A Demoting an employee usually involves changing one or more important terms of the employment contract. For this reason, it can only be done with an employee’s agreement. If you impose a demotion without the employee’s agreement, she would be able to make a claim to recover any reduction in her pay. If she was to resign in response to the demotion, she could also claim constructive dismissal.

The only exception to this would be if the employee’s contract allows for demotion as a disciplinary penalty or for poor performance. If so, then it is unlikely that imposing a demotion would be a breach of contract, provided you first followed an appropriate disciplinary or performance procedure.

However, in this situation, breach of contract and constructive dismissal are not the only risk. Employees have a legal right to reasonable time off work to take necessary action to deal with certain situations affecting their dependants. One of the situations to which the right applies is an unexpected incident involving the employee’s child during school hours. The right is to unpaid time off, and employees exercising the right must tell their employer the reason for the absence and how long they expect to be away from work as soon as is reasonably practicable.

Whether a particular period of time off was “reasonable” and whether the action the employee used the time off to take was “necessary” depends on the circumstances of the case. Ultimately, these are issues determined by an employment tribunal, but there does seem to be at least a good chance that the time off your employee has taken would be covered.

The law protects employees against suffering a detriment as a result of exercising this right. A demotion would clearly constitute a detriment, meaning that if you do demote your employee then, irrespective of the contractual position, there would be a substantial risk of her successfully claiming for any financial losses flowing from the demotion and an award for injury to feelings.

David Brown, associate solicitor, Simpson Millar