Unfair Dismissal on Racist Grounds?

Badger_Lady

Hia,

I'm posting this on behalf of a friend - I have her permission to do so and she would pose the question herself but she's not particularly comfortable with forums.

She started working for our small company in June 2008 and by the end of that year it was bought by a larger US company. The HR and operations are therefore handled in the US but we continue to be based in England and therefore follow UK employment law (something they're relatively unfamiliar with).

Before Christmas, she was told that she had been selected for redundancy along with four other people from a different division in our UK office. She was told that this was due to poor financial performance of the larger company, and that another man (named) would be taking over her role.

Details of the selection:
- Her good performance is not in question.
- The other man was in an entirely different role for a different division of the company. However, five days before the redundancy notice, he was moved into her division and made her line manager.
- He would actually like to be made redundant - he no longer enjoys his work.
- He earns significantly more than her, due to his previous role being of a higher grade.
- His skill set is quite different - although there's some overlap, his performance in his previous role was very poor and he lost a lot of business for the company.
- The company says that he was selected because he has one core skill that she doesn't (which is true), and that they believe he can learn her skills (he probably can).

Details of the redundancy:
- She had a teleconference with the HR team today (I was her witness) and was told that her contractual one month notice would begin tomorrow. This should be followed up by an email.
- She will be receiving 4.5 weeks of statutory redundancy pay (tax free), her bonus and accrued holiday entitlements and outstanding expenses.
- She will also be recieving 2 weeks pay as a compromise agreement, and will be funded £250 to have it signed by an employment lawyer.

Some history

So here's the interesting bit: her previous boss, who is now CEO of the company, has been identified in having a leading role in her selection for redundancy. This same man has a history of making racially insensitive remarks towards her, and expressing a general dislike of her which could be assumed to be rooted in racism. Fairly recently he posted on a social network some very inflammatory comments about her home country, which many of us objected to until he flew to the UK to apologise in person.

So what should we be looking at here? The compromise agreement is very interesting to me, because I feel sure that it shouldn't be needed in a normal redundancy case... what actually are the chances that her selection has been racially motivated and that she can negotiate the agreement upwards or, indeed, take them to tribunal?

Valli

How do you KNOW he has been involved in her selction for redundancy - was anyone else involved, did he override their suggestions.
Do you have any proof of his involvment and the level of it?
Do have have PROOF that he posted offensive remarks?
(Time to collect statements, sworn and signed, from colleagues perhaps)
Any other examples of racism on his behalf (or indeed from anyone else in the company)?
Is SHE the only person identified/selected for redundancy - if there are others are they English/British or not?

If other people have been selected and their selection could be deemed to be not racially motivated then you, and she, may well find it more difficult. Equally, unless there have been other incidences of racism (or apparent racism) you might find it hard to prove.

Finally is she in a union (I hope so - this could get expensive if you do decide to proceed) and has the company followed an agreed consultation process and/or asked/offered the opportunity for voluntary redundancy?

Your friend must feel wretched. Well done you for supporting her!

robpw2

Badger_Lady wrote: »

Hia,

I'm posting this on behalf of a friend - I have her permission to do so and she would pose the question herself but she's not particularly comfortable with forums.

She started working for our small company in June 2008 and by the end of that year it was bought by a larger US company. The HR and operations are therefore handled in the US but we continue to be based in England and therefore follow UK employment law (something they're relatively unfamiliar with).

Before Christmas, she was told that she had been selected for redundancy along with four other people from a different division in our UK office. She was told that this was due to poor financial performance of the larger company, and that another man (named) would be taking over her role.

Details of the selection:
- Her good performance is not in question.
- The other man was in an entirely different role for a different division of the company. However, five days before the redundancy notice, he was moved into her division and made her line manager.
- He would actually like to be made redundant - he no longer enjoys his work.
- He earns significantly more than her, due to his previous role being of a higher grade.
- His skill set is quite different - although there's some overlap, his performance in his previous role was very poor and he lost a lot of business for the company.
- The company says that he was selected because he has one core skill that she doesn't (which is true), and that they believe he can learn her skills (he probably can).

Details of the redundancy:
- She had a teleconference with the HR team today (I was her witness) and was told that her contractual one month notice would begin tomorrow. This should be followed up by an email.
- She will be receiving 4.5 weeks of statutory redundancy pay (tax free), her bonus and accrued holiday entitlements and outstanding expenses.
- She will also be recieving 2 weeks pay as a compromise agreement, and will be funded £250 to have it signed by an employment lawyer.

Some history

So here's the interesting bit: her previous boss, who is now CEO of the company, has been identified in having a leading role in her selection for redundancy. This same man has a history of making racially insensitive remarks towards her, and expressing a general dislike of her which could be assumed to be rooted in racism. Fairly recently he posted on a social network some very inflammatory comments about her home country, which many of us objected to until he flew to the UK to apologise in person.

So what should we be looking at here? The compromise agreement is very interesting to me, because I feel sure that it shouldn't be needed in a normal redundancy case... what actually are the chances that her selection has been racially motivated and that she can negotiate the agreement upwards or, indeed, take them to tribunal?

on what grounds re they offering her a compromise agreement ,? what are they comprmising for

pmlindyloo

There seems a lot wrong with this but I am not an expert.

I do know that if they are offering a compromise agreement then you need professional advice.

If your friend is in a union then this is the route to take.

If not, since the company are offering money towards an employment lawyer then you might want to take this route.

There are some extremely knowledgeable people on this thread so please advise your friend to not agree to anything until others have looked at this post/and she have sought professional advice.

jackyann

I have little experience in employment law, but have witnessed a broadly similar situation (and found the evidence-gathering rather skewed!)
I really think that a union's advice is critical here - and if she isn't in a union (I suspect not if she asked you rather than a rep to be her witness) then try CAB.
I think that how she proceeds may depend on how she sees her future. If backed by a union, with few job prospects, she may wish to pursue this ( but see above about proof - this is vital and witnesses can melt away!).
However, if she feels confident of getting another job soon, she may prefer to concentrate on that rather than drag this on - it can be very wearing, even when you have good grounds & good support.

pmlindyloo

jackyann wrote: »

I have little experience in employment law, but have witnessed a broadly similar situation (and found the evidence-gathering rather skewed!)
I really think that a union's advice is critical here - and if she isn't in a union (I suspect not if she asked you rather than a rep to be her witness) then try CAB.
I think that how she proceeds may depend on how she sees her future. If backed by a union, with few job prospects, she may wish to pursue this ( but see above about proof - this is vital and witnesses can melt away!).
However, if she feels confident of getting another job soon, she may prefer to concentrate on that rather than drag this on - it can be very wearing, even when you have good grounds & good support.

With all due respect to CAB it sounds as if the OP's friend needs some specialist help and soon. Her local CAB may not have an employment specialist (almost certainly needed) and there may well be a time limit aspect to this redundancy situation. At the moment CAB are extremely busy so the chances of an appointment soon may not be possible.

So, union or employment lawyer.

Emmzi

compromise agreements are very common in redundancy, my current company use them all the time even where there is no doubt on fairness etc. So do not read anything into it but if she does sign it, she then cannot raise a case.

If she wants to contest on racism grounds she needs very robust evidence and to show she has exhausted internal procedures. (Did she ever lodge a grievance?)

in her case I'd ask for a bit more money and an agreed reference. But it depends if she wants to make a stand. If she does, she needs a solicitor, of course. She could try "I am not sure I want to sign it as I feel there may have been a racial motive" and see if they up the cash, if she is a brave type!

SarEl

Emmzi wrote: »

compromise agreements are very common in redundancy, my current company use them all the time even where there is no doubt on fairness etc. So do not read anything into it but if she does sign it, she then cannot raise a case.

If she wants to contest on racism grounds she needs very robust evidence and to show she has exhausted internal procedures. (Did she ever lodge a grievance?)

in her case I'd ask for a bit more money and an agreed reference. But it depends if she wants to make a stand. If she does, she needs a solicitor, of course. She could try "I am not sure I want to sign it as I feel there may have been a racial motive" and see if they up the cash, if she is a brave type!

I would agree. Unfortunately there is nothing obvious in the process adopted that is blatantly wrong, and proving what is or is not in someones head at the time they make that decision isn't easy. A record of being racist isn't the same thing as being racist in this matter. The proof of racism would fall on her, and I doubt she could muster it.

CA's are indeed rather common with some companies - and US companies in particular have a track record of using them.

And I agree with others - well done for standing up for her and by all means continue to be a witness for her. But if she decides to take a stand, do not get into it - be a witness that says not a thing, and preferably try to look shocked at her cheek! You can be as good a friend outside that room as you like, but don't paint a traget on your back! US companies are remarkably ruthless in general - it comes of having no laws to speak of to protect workers in the US. They often think they should have the same power wherever they are.

Caroline_a

When I was made redundant from my last job the compromise agreement was standard too. Same stuff as you said, they paid for a lawyer to go through it. A lot of it was about not mouthing off the company after I'd left, but I got the impression that it was the company's standard compromise agreement and it wasn't personal to me in any way.

I've taken a previous company to court for unfair dismissal, but I had to have quite a lot of proof (which I did have - and won my case). I do think that although it does sound dodgy, it's all heresay, and your colleague would have a lot of problems proving it.

Edit - SarEl posted before I saw her post and her advice is always spot on. My company was a global multi-national that had originated in the UK, so it's not just the US ones.

Jarndyce

The compromise agreement is not essential, but they are very common - it is a way of the employer heading off any future claims by getting your friend to sign away their rights to take such claims, hence the financial sweetener.

You would need a face to face meeting with an employment lawyer to look at the direct evidence of racial discrimination, but on the basis of what you say such a claim looks weak. As has been said unless your friend herself submitted a complaint or grievance previously, she would be unlikely to win it, on the other hand if there are public comments which have been the subject of a general complaint to which she was party, that may be worth looking at. It might certainly increase the amount of money offered with the compromise agreement, and that is perhaps the way to go.

Bear in mind though that any employee would have only three months from the date the comments were made to complain to a tribunal.

Badger_Lady

Thank you for all your comments so far!

pmlindyloo wrote: »

If your friend is in a union then this is the route to take.

Unfortunately not - we don't have one covering our company. But absolutely yes on the employment lawyer front. She was going to use a family friend who's a lawyer but not an employment specialist... I've told her that I think she needs a recommended specialist for a case like this.

SarEl wrote: »

And I agree with others - well done for standing up for her and by all means continue to be a witness for her. But if she decides to take a stand, do not get into it - be a witness that says not a thing, and preferably try to look shocked at her cheek! You can be as good a friend outside that room as you like, but don't paint a traget on your back! US companies are remarkably ruthless in general - it comes of having no laws to speak of to protect workers in the US. They often think they should have the same power wherever they are.

Luckily this isn't a concern for me - I already handed my notice in (unrelated) and will be leaving within a week of my friend leaving. I'm travelling round the world so there's no need for a reference either!

Jarndyce wrote: »

You would need a face to face meeting with an employment lawyer to look at the direct evidence of racial discrimination, but on the basis of what you say such a claim looks weak. As has been said unless your friend herself submitted a complaint or grievance previously, she would be unlikely to win it, on the other hand if there are public comments which have been the subject of a general complaint to which she was party, that may be worth looking at.

No formal greivances, no... the public comment however was in late November and she has saved a screenshot of it and the objections that were posted beneath it.

She has also asked two other colleagues whether they would be witness to comments previously made in the office - without pressure - and they've both confirmed that they would. We all quite strongly feel that there's a principle at stake.

Four other people have been made redundant at the same time but they're in completely different roles in a different division of the company. We can quite easily understand how and why each of them was selected, either because they're in a unique role or because their performance / attendance record is poor, but this girl's redundancy is really quite a mystery - we did not expect it in the least!

Obviously the best outcome would be an increased compromise agreement. I had one when I was made redundant from my last job without due process being followed at all... they gave me the equivalent of 3 months' salary for it. Should this be the sort of amount that my friend is looking to push for?