Advice please! suspected constructive dismissal

liam8282

Hi,

I am just looking for some advice.

I will give a brief description of the scenario and any advice will be appreciated.

Currently work part time hours, during school hours. Other part time staff work saturdays.

Voluntary redundancy offered by employers, to me only. Reason being that the position is to be made redundant. Employer said they would only consider keeping a position open, but it would mean working full time, including evenings and weekends, which is impossible for me due to working only part time due to children.

I have been employed longer than part time saturday staff.

Since being offered redundancy, I have found information that I believe offers one of the saturday staff basically my job, but on a full time basis. It is the same job, doing the same work, but with a change of title.

I suspect they are trying to get rid of me purely because it is more convenient for the employer to hire the saturday person full time, rather than any other reason.

More than anything, I am disappointed with the underhand methods used by my employer and I am very upset and disappointed with them.

I have been offered redundancy, but at the bottom of the letter there is a disclaimer which basically says no grudges or comeback to the employer if redundancy is accepted.

I can honestly see me accepting redundancy, the employer then taking the saturday person on full time in my role. Basically, getting rid of me, not to make the role redundant, but to let somebody else have the job.

If there is anything further to add, please ask.

But, where do you think I would stand?

BTW, this is not me personally, but just easier to write if it were me.

Cygnus_Alpha

I'm not sure how you would benefit from a constructive dismissal claim given that they are already offering you voluntary redundancy terms. If you want to stay, then stay and see what they do. If you want to go then take the voluntary redundancy.

RichardD1970

No expert, but I don't think you have a case.

They are not offering the Saturday staff your job as a direct replacement. You do part time during school hours but they are offering the job as full time, so it will be your job plus extra.

Even if it is just rolling up two part-time jobs into one full time then I think that there are a valid business reasons to do this.

Pricivius

This does not sound like constructive dismissal to me, but it's not redundancy either. Redundancy requires a reduction in the amount of work to be done - this is not the case in the OP's situation, unless they won't be replacing the Saturday person who is taking on your duties alongside their own?

If that is the plan, then you all should be at risk of redundancy, and should then be advised what jobs are going to be available for you to apply for. However, it sounds like your options would be the Saturday role or the FT role. Could you do the Saturday role? If not, then there's not much point rocking the boat.

Yell if the scenario is not as presumed above.

liam8282

Thanks for the replies.

The main reasons I came to the conclusion that there was basis for a case of unfair or constructive dismissal came from the gov.uk website, main points as follows:

* You must be selected for redundancy in a fair way, eg because of your level of experience or capability to do the job.
You can’t be selected because of age, gender, or if you’re disabled or pregnant etc. If you are, this could be classed as an unfair dismissal.

- I believe the job has already been offered to the saturday person, on the basis that they can work saturdays, where as I cannot. They have offered a full time job, knowing I cannot work full time hours. They have even stated that the new job will be working evenings, even though the office is not open on an evening.

*Your employer should use a fair and objective way of selecting you for redundancy.
Commonly used methods are:

• last in, first out (employees with the shortest length of service are selected first)
• asking for volunteers (self-selection)
• disciplinary records
• staff appraisal markings, skills, qualifications and experience

Your employer can make you redundant without having to follow a selection process if your job no longer exists.

-The employer has said that the job is being made redundant. What they are in fact doing, is just re naming the job. They are trying to cover their backs, but it all seems very underhand with the methods that they are using. None of the Saturday people have been offered redundancy.

The only reason for my selection for redundancy appears to be because I cannot work weekends. This has been the case all along. I was employed to work part time, mon-fri. The weekend people were employed a year or more later to work weekends.

I have copies of emails, that have been sent between my boss and the saturday person, discussing training they need, and it is basically in all areas covered by my job.


*Unfair selection

You can’t be selected for the following reasons - your redundancy would be classed as an unfair dismissal:

• working pattern (eg part-time or fixed-term employees)

Pricivius

To clarify, constructive dismissal is very different from unfair dismissal and requires you to resign. Voluntary redundancy is not resignation.

At the moment, it appears you have been offered voluntary redundancy so I am not clear why you are already looking at unfair dismissal! You have not been dismissed. The company has offered you redundancy on a voluntary basis. It's up to you to take it, or to refuse and see what they do next.

As I queried above, are you saying that they are proposing maknig two PT jobs into one FT job? So your PT weekday hours and someone else's PT saturday hours are being merged into one FT role? If so, I cannot see how this is a redundancy as there is no reduction in work. It sounds more like a restructure.

Are they offering you a decent package for voluntary redundancy - i.e. is it above the statutory minimum? You need to have a think about what's best for you - it sounds as though they want you out so do you want to sit tight and fight, possibly to Tribunal, or do you want to agree to go and get the best deal you can?

liam8282

Maybe not constructive dismissal then, but unfair dismissal.

I am looking at unfair dismissal, because I feel that it is unfair in the way the person has been chosen for redundancy, coupled with the underhanded way in which the Saturday person has basically been offerred the job.

Remember, I am not supposed to know about the Saturday person getting the job. This is just information I have found out.

If the company had come to me and explained that they were wanting to restructure in this way, I would be more accepting of it, rather than this sneaky way of getting rid of one person to fill the job with another.

Also, I do not like the terms they have put in the letter, stating that I cannot make any claim against the company at a later date, if I accept redundancy now. Which again makes me believe that if I accept redundancy, they will take the saturday person on and the cat is out of the bag. They must suspect I have reasonable grounds to make some sort of claim against them.

They have no reasonable grounds to get rid of the monday to friday person, other than they cannot work weekends, which by the gov.uk website says is an unfair reason for dismissal.

Bollotom

It's "Voluntary redundancy", Liam. If you hang on and see if they do force you to become redundant, then you MAY have a case but as it stands you are employed and unless YOU accept the redundancy it would appear your job is safe for now. I would just wait and see, perhaps sit down and talk with your line manager and ask about the e-mails. Could also be someone doing a bit of mischief. Hope it gets sorted but there's no constructive or unfair dismissal yet.
Just as an aside, Liam. You're not this Saturday person are you.
:cool:

liam8282

I'm neither person. Just easier to write as though it was me, because changing it to he / she said, gets confusing very quickly (for me anyway).

Just the part time person asked my thoughts and I have sided with them, as it does seem unfair. It also looks like the gov.uk website also agrees that it is unfair dismissal.

But apart from that, I don't know what else to tell them.

They rang acas and were told to discuss any concerns during the consultation period. Which is fair comment. At the moment it is just all ifs and buts.

The person could simply accept redundancy and walk away, but there is a sense of injustice and animosity at the way things have been carried out.

liam8282

Some more info found out.

The boss knows that the midweek person knows about the offer of training etc to the saturday person.

The excuse given for the training offer to only one of the saturday staff (the one I believe has been offered the job), is that the training course costs the same for one person as it does for a group. Yet only the boss and one saturday person is being offered the training.

The boss has also confirmed that if the midweek person turns down the full time role, the saturday person has expressed an interest in the full time role. However, nobody in the office is supposed to know about the full time role as it has not been offered on the open market yet. It is still supposed to be under discussion as part of the redundancy consultation process, it is not even supposed to be confirmed if this role will even exist yet.

It looks like the midweek person has had enough and will accept redundancy, begrudgingly. They don't want to stay at a place where they feel they are not wanted.

But surely if they feel they have been unfairly treated, which it does appear they have been, they will have some right to address this at a later date, even if they accept the terms of redundancy?

Pricivius

Confused....

Now you're saying the midweek person has been offered the FT role - so the midweek person and the Saturday person have both been offered it?

Voluntary redundancy is exactly that - voluntary. You're suggesting volunteering and then claiming unfair dismissal, which doesn't make much sense.

If the midweek person does not want to volunteer, then don't. This is why I asked if they are being offered an enhanced package. If so, and they don't volunteer, the package for redundancy proper may well be less...