Redundancy or Unfair Dismissal?

Pont

To be brief!

We have been told that our department is undergoing staff 're-structuring'. There are 20 people working in our department but after re-structuring there will only be 8 jobs. We have been told that we are all welcome to apply for the new positions.

However, after looking at the small print in the new proposed contracts it appears that not one of the present 20 employees can apply as they've 'upped' the 'essential' qualifications. Certainly when I first started working for this department (10 years ago), I was never asked if I had the additional qualification - it wasn't (and isn't afaik) a legal requirement.

My question - is this a case of redundancy, or is this a case of unfair dismissal? The suggestion from management is that if we don't apply for one of the new posts then they will take it we've resigned!

Thanks in anticipation.

SarEl

Pont wrote: »

To be brief!

We have been told that our department is undergoing staff 're-structuring'. There are 20 people working in our department but after re-structuring there will only be 8 jobs. We have been told that we are all welcome to apply for the new positions.

However, after looking at the small print in the new proposed contracts it appears that not one of the present 20 employees can apply as they've 'upped' the 'essential' qualifications. Certainly when I first started working for this department (10 years ago), I was never asked if I had the additional qualification - it wasn't (and isn't afaik) a legal requirement.

My question - is this a case of redundancy, or is this a case of unfair dismissal? The suggestion from management is that if we don't apply for one of the new posts then they will take it we've resigned!

Thanks in anticipation.

It's true - if you refuse to apply then it would be taken as a resignation. If, however, management have put this qualification in the new JD (which they can do) to stop you all applying - well, what would be the purpose of that since none of you will get the job and you will all be redundant anyway??? So they can interview all of you and turn you down because you don't have the qualification. But the fact that the qualification isn't legally necessary isn't relevant - if the employer has decided that they now want it they can certainly include it in new JD's. So there's no need to worry about being deemed to have resigned if you all apply and get turned down.

Pont

I was hoping you would post SarEl!

This is a Local Government department in question here. My initial thoughts are that they just want to shut down the department without paying redundancy hence trying to force us to resign. Also, just thinking out loud......

1) Would there not be an obligation on the Authority to provide suitable training in order for their existing staff to meet their new 'essential' qualification? I remember not too many years ago the Authority had to send all of their electricians on a course for them to be able to carry out work under new regulations (they certainly were not made redundant or forced to resign their posts).

2) It's been suggested that as we 'have' to apply for one of the new posts (and get rejected as we don't have the necessary qualification), doesn't that make us unsuccessful applicants rather than redundant employees?

3) Are you saying that at any time your employer can potentially change the requirements for your job? For example you could be a teacher in a high school for 10 years and suddenly, overnight, it becomes essential to have a PSV licence! If this is the case nobody is 'safe' in their job. In effect, at anytime, any employer could require any qualification (dustbin collectors 'have' to speak Russian, checkout staff 'have' to be able to do reflexology, Barristers must have a diploma in childcare[!] etc)!

4) Is there any chance, in your opinion, that what I've described (albeit briefly) amounts to constructive dismissal?

Any help/advice gratefully received as there has been a lot of historic gunk as well - I can see an ET in the near future.

SarEl

Ah - I see why you are worrying now, but you are worrying needlessly - at least about anything other than redundancy (which is probably enough )

Pont wrote: »

I was hoping you would post SarEl!

This is a Local Government department in question here. My initial thoughts are that they just want to shut down the department without paying redundancy hence trying to force us to resign. Also, just thinking out loud......I would never claim that local government are falwless or don't do stupid things - but not that stupid!

1) Would there not be an obligation on the Authority to provide suitable training in order for their existing staff to meet their new 'essential' qualification? I remember not too many years ago the Authority had to send all of their electricians on a course for them to be able to carry out work under new regulations (they certainly were not made redundant or forced to resign their posts). No. If the requirement is a legal requirement then they ought to support existing staff to meet the requirement - but since it isn't there is no such compulsion. To be fair here, puttinga side the qualification issue, there is a clear redundancy situation here due to the restructure, and since this will be prompted by "business need" they can claim the same for the changed JD's - it may not be a requirement but their business is best served by their staff having it.

2) It's been suggested that as we 'have' to apply for one of the new posts (and get rejected as we don't have the necessary qualification), doesn't that make us unsuccessful applicants rather than redundant employees? No. It makes you redundant in accordance with your councils normal policies. You are existing employees subject to a re-structure.

3) Are you saying that at any time your employer can potentially change the requirements for your job? For example you could be a teacher in a high school for 10 years and suddenly, overnight, it becomes essential to have a PSV licence! If this is the case nobody is 'safe' in their job. In effect, at anytime, any employer could require any qualification (dustbin collectors 'have' to speak Russian, checkout staff 'have' to be able to do reflexology, Barristers must have a diploma in childcare[!] etc)! No, that is being ridiculous, although changes can be made to an existing job description. But you are failing to udnerstand what is happening here. This is not a change to your job description. It is a business re-structure and these are new jobs no matter how closely they may resemble the old one. The previous structure, jobs and all have "gone" and in their place are new structures, jobs and all.

4) Is there any chance, in your opinion, that what I've described (albeit briefly) amounts to constructive dismissal? Definitely not and don't even go there - it isn't worth the enormous risk because the chances of winning a great case are minimal! If you want to do anything you wait until you are made redundant and claim unfair dismissal - but I honestly don't think anything you have said here is screaming "great case". Albeit with the rider that there are scant details!

Any help/advice gratefully received as there has been a lot of historic gunk as well - I can see an ET in the near future.

Tribunals don't deal with history - they deal with the here and now. I don't see much going for you here - but I am willing to be convinced if you can find something! It might help if I knew what the joba nd the qualification are - although it also may not!

Pont

Again many thanks SarEl for your comprehensive reply.

Re: Redundancy. The employer is stating that nobody is entitled to redundancy payments as all present employees are 'casual' despite many of us working continually for the department for 10 years or more. I'm aware that this isn't the case as I've searched out the various pieces of legislation that would dispute this. The problem here is that I can see a long battle in trying to get the employer to accept this and act accordingly. In my opinion, as they are changing the job description, the present jobs under the present job description are therefore redundant by definition. However, I can see they are going to act along the lines of 'You're not qualified' and 'You're a casual employee' and 'We owe you nothing' and so 'goodbye'!

Re: Re-structuring. I take on board your comments and will have to think further here.

Re: Constructive dismissal. It has been mentioned to me by somebody else but my understanding is that these cases are very difficult to prove.

You state that Tribunals don't deal with history. Who then deals with historic non-payment of holiday pay, incorrect deductions to salary and so on (there are many more 'iffy' examples)?

I fully understand that knowing more details may assist you when giving advice but I'm shying away from posting too much as it may identify me to my employers.

SarEl

Pont wrote: »

Again many thanks SarEl for your comprehensive reply.

Re: Redundancy. The employer is stating that nobody is entitled to redundancy payments as all present employees are 'casual' despite many of us working continually for the department for 10 years or more. If you have four or more years of continuous (unbroken) service you are permanant. They can claim what they like, but it is impossible to duck this one. But it must be unbroken service.

I'm aware that this isn't the case as I've searched out the various pieces of legislation that would dispute this. The problem here is that I can see a long battle in trying to get the employer to accept this and act accordingly. In my opinion, as they are changing the job description, the present jobs under the present job description are therefore redundant by definition. However, I can see they are going to act along the lines of 'You're not qualified' Yes they can do this and 'You're a casual employee' see above! and 'We owe you nothing' and so 'goodbye'! If you have continuous service of 4 or more years they can try. But it won't work.

Re: Re-structuring. I take on board your comments and will have to think further here.

Re: Constructive dismissal. It has been mentioned to me by somebody else but my understanding is that these cases are very difficult to prove. Never try them. Let the employer dismiss. If you claim constructive dismissal the burden of proof is on you - in unfair dismissal it is on the employer. Simples

You state that Tribunals don't deal with history. Who then deals with historic non-payment of holiday pay, incorrect deductions to salary and so on (there are many more 'iffy' examples)? Not if they are "historic" they don't. You can only complain to a tribunal within three months less a day of the act (or last act in series of acts) - that isn't history, it's current affairs But if you are dismissed / made redundant, then the tribunal isn't interested in "they were horrible employers in 2009" or "they didn't do this right in 2007" - they will only be interested in the events surrounding the termination of contracts, and whether this was fair or not.

I fully understand that knowing more details may assist you when giving advice but I'm shying away from posting too much as it may identify me to my employers.

You can PM me provided it doesn't run into pages!

Pont

SarEl - don't know how many 'thanks' I can call before it becomes grovel time!

From what you're saying, and my understanding, redundancy payments are without question as in effect we're considered pemanant employees under the 4 year, continuous employment, legislation. So, if I understand this correctly, if no redundancy offer is made ET is the next move.

I've sent in an official grievance (today) due to the historic problems. I've attempted to get this sorted between ourselves over the last two years, but it has resorted to they don't reply to my emails/letters. If there's no joy with tackling money that I believe is due, quite large sums involved over 10 years, where do I go to next if not tribunal? Is it a civil proceeding? I have no clue as I thought this would all be heard at tribunal. Quite honestly, what I would term 'historic' problems with payments, salary, holiday pay will run into much larger sums than redundancy payments. Also, if I can't get agreement on my present employee status, how can I possibly agree (or not) to any future employee status?

I'm not trying to pull a fast one, just want what is lawfully due.

One last question for the open forum (may help others). How does one prove 'mutuality of obligation'? I've looked at cases heard in the High Court, and read summaries by various LJs - all appear to be in accordance with my case. However, my employers maintain there is no MOO as we are 'casual'! My feeling is when I have my Grievance meeting I would be best served pointing out why I believe MOO exists as surely all other differences of opinion, both historic and present (contract status, redundancy, etc) start here.

Again, if ET doesn't deal with historic grievances, who does? IMO, this is too important not to bother. Ten years of non-payment of holiday pay can amount to serious money!

I will pm you tomorrow - thank you. I will work on condensing my gripes down to a page (at the mo they run into 12!).

SarEl

Pont wrote: »

SarEl - don't know how many 'thanks' I can call before it becomes grovel time!

From what you're saying, and my understanding, redundancy payments are without question as in effect we're considered pemanant employees under the 4 year, continuous employment, legislation. So, if I understand this correctly, if no redundancy offer is made ET is the next move. This is corect if your contractual arrnagements are those of a worker. However there are some exceptions, and something in your last post is causing me concern - are you on zero hours contracts? If this is the case then even after 10 years, you are not classed as having rights to redundancy - because you have no right to be provided with (nor obligation to accept) work.

I've sent in an official grievance (today) due to the historic problems. I've attempted to get this sorted between ourselves over the last two years, but it has resorted to they don't reply to my emails/letters. But what have they said previously?

If there's no joy with tackling money that I believe is due, quite large sums involved over 10 years, where do I go to next if not tribunal? Is it a civil proceeding? Neither will go back ten years! Civil proceedings if you have a case will only go back six years. I have no clue as I thought this would all be heard at tribunal. Quite honestly, what I would term 'historic' problems with payments, salary, holiday pay will run into much larger sums than redundancy payments.Even if this is a zero hours contract you would be entitled to holiday pay. Such pay is usually calculated on the basis of the number of hours worked. Also, if I can't get agreement on my present employee status, how can I possibly agree (or not) to any future employee status?

I'm not trying to pull a fast one, just want what is lawfully due.

One last question for the open forum (may help others). How does one prove 'mutuality of obligation'? I've looked at cases heard in the High Court, and read summaries by various LJs - all appear to be in accordance with my case. However, my employers maintain there is no MOO as we are 'casual'! My feeling is when I have my Grievance meeting I would be best served pointing out why I believe MOO exists as surely all other differences of opinion, both historic and present (contract status, redundancy, etc) start here.

Again, if ET doesn't deal with historic grievances, who does? IMO, this is too important not to bother. Ten years of non-payment of holiday pay can amount to serious money!

I will pm you tomorrow - thank you. I will work on condensing my gripes down to a page (at the mo they run into 12!).

If you have a zero hours contract then I am afraid that your options are limited - but I am only guessing that this may be the case. Nothing in your earlier posts indicated this, but the most recent one suggested it may be the case. With such contrats you do not accrue "continuous employment" rights in the same way as other contracts and they never become "permanant" - the four year rule only applies to series of employment contracts where work is guaranteed (so basically, for a set number of hours per week). Zero hours contracts do not guarantee you any work, and even if you work full time hours every week for ten years you will not accrue anything more than the basic rights - not redundancy and not unfair dismissal (unless, and this is really a stretch to evidence, there is discrimination involved.)