rights as an employee

unholyangel

SarEl wrote: »

If it is subject to appeal (not review) them it goes to the EAT, who are different people entirely. But I am confused - if this was heard my a panel - 3 judges - and two of them were telling the judge that he was wrong, why did they not siply outvote him? On a panel hearing it is a majority decision. Or are you referring to something else as the panel? The system in Scotland is not all that different from the one in England and Wales.

Not 3 judges. One judge and 2 "lay" members that are not legally qualified.

The only part I know for sure the panel members disagreed with was the claims of the ETJ that the claimant had said something/changed their story while they had not.

It was a very complex case. The gist of the decision was that there had been a fundamental breach in contract, but because it was cutting costs for the company, it was fair although he stressed that several of the employer's actions were utmost unreasonable. He even said in his judgement that the need for the type of work had not ceased nor diminished.

While personally I would agree with it not ceasing, I certainly don't agree that it hadn't diminished and (still imo) to suggest otherwise is completely inane.

zagfles

unholyangel wrote: »

The only documents I've ever read with regards to redundancy were "where the need for the type or volume of work either ceases or diminishes" as a definition.

Well that's pretty much the same as "the job is no longer required". If it ceases, then everyone doing the job is redundant, if it dimishes then less people are required, so some are redundant. In both cases, the jobs lost are no longer required.

I'm sure the actual legal definition runs to 10 pages or so...

SarEl

zagfles wrote: »

What a hypocrite you are. You get all huffy when someone else makes assumptions about you, then make you all sorts of assumptions about me.

I get my information from my union (who believe it or not have no affiliation to the Conservative party, nor get their information for the tabloid press), plus about 25 years of experience as an employee of large companies, and several redundancy situations where I've been put as risk and several friends/colleagues have been made redundant. Some of that time I've worked in places where the union has been very weak or even non-existant, in one situation the management were trying to make changes to our T&Cs, and our small group (about 20 of us) successfully challenged them with almost no union help at all.

The vast majority of employee/employer disagreements get sorted out without resort to tribunals/courts. So I suspect a barrister specialising in employment issues would get a very warped view of what happens in workplaces, as they only see the extremes.

And there you go making assumptions. I am perfectly aware of the fact that the majority of disputes are settled in the workplace. But then I was not the one assuming that simply because someone ends up at a tribunal that there is a real prospect that their claim is malicious or frivolous …because such a position is the only justification for assuming everyone should be charged for the right to assert their rights.

You are presumably also aware that in the workplace there is a big difference between being right and winning. Employees who are willing to fight may win simply because the employer backs off …others don't and employees can be sacked.

But I am happy to stand corrected on your unions over simplistic view of what redundancy is. They are around wrong and not you. Presumably. You of course knew it was wrong .

zzzLazyDaisy

unholyangel wrote: »

While personally I would agree with it not ceasing, I certainly don't agree that it hadn't diminished and (still imo) to suggest otherwise is completely inane.

I am a bit reluctant to get into this discussion - partly because it is taking the thread off topic and partly because it is pointless discussing a scenario which is being related to us third hand, and therefore inevitably going to suffer from an element of distortion (this is not a criticism, just a statement of fact).

However, I do feel that I should point out that a redundancy situation arises when the employers need for employees to carry out work of a particular kind, ceases or diminishes. The 'ceases or diminishes' refers to the employer's requirement for workers, not to the amount of work itself. So it is perfectly possible for the amount of work to reduce, whilst the employers requirement for the number of workers to stay the same (albeit by reducing their hours).

I also wonder about the judge's comments around breach of contract. It sounds to me as if the employee had his hours reduced, but was not actually dismissed. He then resigned and claimed that the employer's actions amounted to a fundamental breach of contract in changing his work from night shift to day shift, and in reality the closure of the night shift was a redundancy situation, so he should have been made redundant. On the facts that you have told us, this is the only scenario that makes sense.

You may not have enough information to be able to comment, but if that is an accurate summary, then it is not surprising that he lost his claim as this scenario is notoriously difficult to prove - because (in lay mans terms) the employee must show that the employers action amounted to such a serious breach of contract that it was equivalent to dismissing the employee. Something like 90% of cases fail to get over that first hurdle. (In other words, this was not an actual dismissal by the employer, but a constructive dismissal claim by the employee).

Apologies if I have misunderstood the facts.

Sambucus_Nigra

zagfles wrote: »

I get my information from my union

If, as you say, the employee holds most of the rights - then there would be no need for a union.

zagfles

SarEl wrote: »

And there you go making assumptions. I am perfectly aware of the fact that the majority of disputes are settled in the workplace. But then I was not the one assuming that simply because someone ends up at a tribunal that there is a real prospect that their claim is malicious or frivolous …because such a position is the only justification for assuming everyone should be charged for the right to assert their rights.

Nor am I. I don't know why you're making that "assumption";). I don't think this is a good idea at all - although IMO where the claim is malicious or frivioulous the employee should foot the bill, not the employer. For a small employer the cost can be a threat to the business, as someone posted here recently.

OTOH, it could encourage people to join unions, who would tend to cover this sort of thing.

You are presumably also aware that in the workplace there is a big difference between being right and winning. Employees who are willing to fight may win simply because the employer backs off …others don't and employees can be sacked.

But I am happy to stand corrected on your unions over simplistic view of what redundancy is. They are around wrong and not you. Presumably. You of course knew it was wrong .

Now let me see, who do I trust, my union who have seen me safely through 3 redundancy situations in the last 15 years, and have saved several colleagues from redundancy, and secured better deals for those who have left, or some anonymous internet forum poster who I know nothing about? I'll have to think about that one...:D

unholyangel

zzzLazyDaisy wrote: »

I am a bit reluctant to get into this discussion - partly because it is taking the thread off topic and partly because it is pointless discussing a scenario which is being related to us third hand, and therefore inevitably going to suffer from an element of distortion (this is not a criticism, just a statement of fact).

However, I do feel that I should point out that a redundancy situation arises when the employers need for employees to carry out work of a particular kind, ceases or diminishes. The 'ceases or diminishes' refers to the employer's requirement for workers, not to the amount of work itself. So it is perfectly possible for the amount of work to reduce, whilst the employers requirement for the number of workers to stay the same (albeit by reducing their hours).

I also wonder about the judge's comments around breach of contract. It sounds to me as if the employee had his hours reduced, but was not actually dismissed. He then resigned and claimed that the employer's actions amounted to a fundamental breach of contract in changing his work from night shift to day shift, and in reality the closure of the night shift was a redundancy situation, so he should have been made redundant. On the facts that you have told us, this is the only scenario that makes sense.

You may not have enough information to be able to comment, but if that is an accurate summary, then it is not surprising that he lost his claim as this scenario is notoriously difficult to prove - because (in lay mans terms) the employee must show that the employers action amounted to such a serious breach of contract that it was equivalent to dismissing the employee. Something like 90% of cases fail to get over that first hurdle. (In other words, this was not an actual dismissal by the employer, but a constructive dismissal claim by the employee).

Apologies if I have misunderstood the facts.

You would be correct in that presumption. I haven't divulged all the details as (as you said) it would be going off topic. But what I said above is accurate. That although the tribunal accept the employer was unreasonable in their actions both to the situation and to the employee and that there was undoubtedly a fundamental breach of contract, they find that the reason was fair as the business was closing between midnight and 6am to cut costs and diverting calls to a mobile instead of having the office manned.

Prior to the reduction there would have been 2 full time employees (one nightshift and one dayshift) and 5 part time employees. After the reduction there would be only 1 full time dayshift. Again, to me that signifies a diminished need for workers as they no longer require a full time nightshift.

Hard to believe that 4 employment solicitors got it wrong though. But the law does not always make sense (not referring to employment law itself, just law in general).

zagfles

Sambucus_Nigra wrote: »

If, as you say, the employee holds most of the rights - then there would be no need for a union.

What a ridiculous argument! The union helps employees assert their rights. Like mine did when they tried making people redundant without following the correct process.

Besides which unions aren't there just for legal issues, they can help workers unite to get better pay, T&Cs etc, over and above any legal requirements.