Redundancy whilst using contract staff

PZH · 21 November 2008 at 4:34PM

Hi All

Although not 'formally' in this position yet - just wanted to know if anyone knows the legal situation on this...

I have an employment contract which states my full time, permanent position within the company I work for ( and is not of fixed length - have continuous service of 10yrs and 3 yrs ( Approx ) in this role ( and when I resigned the contract )). There are several people in the same role, and, due to demand, the company also took on contract staff to make up a short fall - which I always thought were time bound ( i.e. 6mnths - 1yr contracts )

I have been working on a secondary project within the company for the past year or so, but never had written, verbal or any other form of statement that my contract has changed in any way. The secondary project is coming to a close, so I approached my boss and told him that I would be rejoining the original project ( the one mentioned in my employment contract ).

His stance is that there is "no longer a position for me."

Now 'formally' nothing has happened yet - but I get the feeling that he may persue this down the "Redundancy" line with HR.

So:-

a) Can they recruit contract staff during boom times and then get rid of permanent employees when it slacks off - hence keeping the contract staff ?? ( I have been scowering the internet and asking as many people I can contact and this may well be the case legally if not morally !!??!! :mad: )

Can they just make me redundant - or would they have to select us all for redundancy and then provide some selection criteria ? ( Again - looking for information - there are various ways round this like making everyone reapply for their positions and then just stating "Sorry - you were unsuccessful in your application"... ??? )

I will ring ACAS on Monday - to shocked at the moment to do anything.

Any pointers would be welcome :T

Conor_3 · 21 November 2008 at 6:45PM

a) Yes they can and it frequently happens. It's been in the news countless times.
b) Yes they can. They can choose whether to single out a particular person or not. I take it you've heard of the phrase "last in, first out"? Well that's one criteria some companies use to make someone redundant.

PZH · 21 November 2008 at 6:51PM

Conor wrote: »

a) Yes they can and it frequently happens. It's been in the news countless times.
b) Yes they can. They can choose whether to single out a particular person or not. I take it you've heard of the phrase "last in, first out"? Well that's one criteria some companies use to make someone redundant.

Thanks Conor

Thought as much with point a) - although not good

Point b) - but surely this is still using a 'selection criteria' - even though it's specific selection ?

My point being - they just can't say to me - 'your it'... ( even though I do fully accept they will probably make the selection so unique that it will leave me little or no option ). - AND does the selection criteria apply to the contract staff as well ??

cazziebo · 22 November 2008 at 5:35PM

What an awful situation...

There is no restriction on using contract staff during redundancy, and in fact, in my agency days companies going through downsizing often took on agency staff because it didn't affect headcount and they could be let go at any time. Because agency staff are not employees then they do not come into redundancy consultations or criteria.

However, the company cannot make YOU redundant. It's the job that's made redundant. It does sound as if your role is becoming redundant.

You may be able to argue that your position is not redundant as you were on a special project with every expectation you would be returning to your former role. ACAS should be able to give you a definitive answer.

Good luck with it. Not a nice place to be in.

ohreally · 22 November 2008 at 7:37PM

If your employer is considering a redundancy situation he must ensure the selection procedure is fair, there was adequate consultation and there was no other alternative employment which could be offered. In the absence of proper consultation, a dismissal is almost bound to be unfair.

I would expect your employer to terminate temp contracts and contractors before looking at your own situation however redundancy can become a complex matter and your best bet would be to seek advice from your trade union or if your not a member consult an employment lawyer.

PZH · 23 November 2008 at 2:10PM

Thank you all for your support and kind words.

cazziebo wrote:

...Because agency staff are not employees then they do not come into redundancy consultations or criteria.

Don't like the sound of that. Would it make a difference if they were self employed on short term contracts rather than "Agency" staff ??

My understanding of the difference is that the self employed short term staff do actually have a contract with the company but only for a finite time period - e.g. 6mths / 1 yr - and a very short notice period - e.g 1wk.

Whereas, agency staff is via a third party to provide staff - and therefore the contract of employment is with the agency and not the individual concerned ?

I will have to double check but I think they staff concerned fall into the first scenario. Would that make a difference ??

cazziebo wrote:

...with every expectation you would be returning to your former role.

Like the wording here - must remember to use this one. :T

ohreally wrote:

I would expect your employer to terminate temp contracts and contractors before looking at your own situation......

Yes, me too, but I don't think there is a legal obligation to do this ?? And with the economic situation - companies are lowering their moral standards in the fight for survival.

_pale_

briona · 23 November 2008 at 3:11PM

It's important to remember that it's not YOU they're making redundant, it's your POSITION.

Obviously if the company is really struggling, a good reason for keeping the contractors on (rather than the permanent staff) is that they can be let go at the drop of a hat with no need to pay redundancy.

I doubt that they are actively singling you out though, as with approx. 13 years' of service, you would be entitled to a fair redundancy payoff – a statutory minimum of 1 week's pay per each full year worked (increasing to 1.5 weeks' pay per full year worked if you are over 41) – it's more likely to be that your work on the secondary project, i.e., your position, albeit not the one in which you were originally employed, is coming to a close and there isn't enough work for you on the original project.

rlc_2 · 24 November 2008 at 11:46AM

You should be given the opportunity to appeal the decision and also apply for any other relevant posts within the company when you receive your "Position under threat" letter.

Good luck.

PZH · 26 November 2008 at 9:21AM

Just thought I would give an update - mainly for me to get my frustration out...

phoodless wrote: »

Although not 'formally' in this position yet..

Will be soon - HR want to call a meeting with me...

phoodless wrote:

I have an employment contract which states my full time, permanent position within the company I work for ( and is not of fixed length - have continuous service of 10yrs..

Irrelevant - see below...

phoodless wrote:

I have been working on a secondary project within the company for the past year or so, but never had written, verbal or any other form of statement that my contract has changed in any way.

This, apparently, is known as an "Implied" contract - and doesn't need to be notified. Due to the fact that I have been working on the secondary project - that is now my contracted project.

phoodless wrote:

The secondary project is coming to a close, so I approached my boss and told him that I would be rejoining the original project ( the one mentioned in my employment contract ).

His stance is that there is "no longer a position for me."

And - here is the sting in the tail - the position I am being made redundant from is the "Implied" contract - so I have no legal entitlement to the original signed contract. This is despite no-one EVER mentioning that the project would assume "Implied" status and that my old contract would become null and void.

phoodless wrote:

a) Can they recruit contract staff during boom times and then get rid of permanent employees when it slacks off - hence keeping the contract staff ??

YES !!

phoodless wrote:

Can they just make me redundant - or would they have to select us all for redundancy and then provide some selection criteria ?

Irrelevant - since it is only me on the "Implied" contract - therefore the role is no more.... :mad:

I am angry, frustrated, annoyed, feeling like a naive idiot, so depressed and don't know which way to turn....

Never been without a job ( or income ) since I left school in 1982 ( Apart from a 3 yr stint to get my degree ) so really, really scared and afraid for my family at the moment......

Redundancy whilst using contract staff

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