Advice please! suspected constructive dismissal

CFC

The work is being restructured and the job is going to be FT now in essence. Your friend has been asked if she wants voluntary redundancy as her shifts are not as convenient to the company as other people's shifts.
Your friend was asked if she wanted to go FT and the answer is no.
Saturday person asked if she is interested in FT and the answer is yes.

I cannot see for the life of me how you deem that to be unfair in any way?

Georgiegirl256

liam8282 wrote: »

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?

I wouldn't think so no. If the midweek person has been offered the full time job and said NO, then obviously, the company has offered her it, but then has to go with what is best for the company in the long run.

What would be unfair is if the company didn't offer her the job at all, and just offered it/gave it to the Saturday person.

liam8282

I don't mean to be rude or abrupt, but do any of the people commenting actually have any knowledge or experience in this, because it just looks like you are giving your opinion on the situation, rather than the actual facts about it. (please don't take that the wrong way, not my intention to upset anyone)

A few points to answer the last few comments....

"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... "

It is confusing!

Dribs and dribs of further information keep getting found out.

Basically what I believe has happened. The business currently has one person part time mon-fri, two people part time saturday. What they want is one full time person mon-sat, with one part time saturday.

Now, they know the circumstances of the mon-fri person, being that they can only work mon-fri, within school hours. That is where the unfair part arises. The full time job offer is unfair, you can't offer a full time job to a person knowing full well that they cannot work the hours you are offering. The basis for selection for redundancy is also unfair. It is not work or job related, it is based solely on the part time hours worked.

The consultation process for redundancy has only just started. So in theory (or at least my understanding) there cannot be any job offers made until the the consultation process is complete. Anything could happen in the consultation process. Yet information is available which shows that the job has been offered full time to the saturday person, and they have been offered training to do the job. Only to cover the employers back, they have now back tracked and said that the job is available to the mon-fri person if they want it.

If they accepted, would they really want to work in a place knowing full well that they are not wanted by their employers?

There is nothing really voluntary about the redundancy. It is standard terms of redundancy being offered.

The work is being restructured and the job is going to be FT now in essence. Your friend has been asked if she wants voluntary redundancy as her shifts are not as convenient to the company as other people's shifts.
Your friend was asked if she wanted to go FT and the answer is no.
Saturday person asked if she is interested in FT and the answer is yes.

I cannot see for the life of me how you deem that to be unfair in any way?

Because you can't just select people for redundancy because of the hours they work, it is an unfair selection process. Unless of course you work in an office 9-5, and they change the opening hours to 5-12, but that isn't happening here.

Basically because she has children and needs to take them / pick them up from school, she is being selected for redundancy. Where as the other person does not have that responsibility.

The job is not being restructured or changed, it is the same job, with a different title.

I wouldn't think so no. If the midweek person has been offered the full time job and said NO, then obviously, the company has offered her it, but then has to go with what is best for the company in the long run.

What would be unfair is if the company didn't offer her the job at all, and just offered it/gave it to the Saturday person.

They have offered it on a full time basis, knowing the part time employee cannot work full time hours.

When making the job offer it has to be reasonable. For example if you make the HR manager redundant, it wouldn't be reasonable to offer them the cleaners job.

The company just want the person out and this is their way of forcing them out.

Pricivius

I could tell you I'm a qualified solicitor with years of experience handling issues just like this. Whether I am or not, you will never know. You have asked for advice on a public forum so you have no ide who any of us are or what level of knowledge or experience we have. If you want a guarantee, you usually have to pay for it.

So now it appears that this is not a voluntary redundancy, but is a straightforward redundancy process. However, I still don't understand why this is a redundancy as there is no reduction in the amount of work available - the employer is simply seeking to restructure without loss of work. The statutory definition of redundancy is as follows, but I can't see how it applies. My first step in your friend's situation is to ask the employer that question. However, if I'm right and this should not be a redundancy, then your friend would not be entitled to redundancy pay so it may be a case of shooting herself in the foot...

"An employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -

(a) the fact that his employer has ceased or intends to cease

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish."

liam8282

Pricivius - I appreciate all of the comments that have been given.

It may be my poor explanation of the scenario too which can be blamed for people coming to different conclusions.

It looks a lot more complicated than I first thought and some good points have been raised here.

CFC

liam8282 wrote: »

LONG POST
The company just want the person out and this is their way of forcing them out.

Yes, I do have experience. And you started off saying 'voluntary redundancy' so there is nothing unfair, voluntary means just that.

By the way, I do not know where you are doing your research, few employers would select last in first out as potentially there's an age discrimination there.

Off topic/ so many potential discrimination claims here and there it's a minefield, but regardless the 'right' person will always be selected on a purely OBJECTIVE basis.....!

liam8282

CFC wrote: »

Yes, I do have experience. And you started off saying 'voluntary redundancy' so there is nothing unfair, voluntary means just that.

As I said, my wording isn't great.

Redundancy has been offered, but there is nothing voluntary about it.

One person has been chosen out of three, and there is no realistic option other than to accept it.

CFC wrote: »

By the way, I do not know where you are doing your research, few employers would select last in first out as potentially there's an age discrimination there.

I don't see how age discrimination would apply to LIFO in any way? Last in first out, means selection is based on length of service. So if you are employing people on a fair basis, age will be irrelevant. The last person in could be the new 60 year old trainee for all anybody knows.

https://www.gov.uk/redundant-your-rights/being-selected-for-redundancy

Being selected for redundancy

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.

CFC wrote: »

Off topic/ so many potential discrimination claims here and there it's a minefield, but regardless the 'right' person will always be selected on a purely OBJECTIVE basis.....!

This is where the problem has arisen. The company has chosen what they think is the easiest (for want of a better word) way for them to reorganise their office.

The problem is the way they have gone about it, all very sneaky and underhand, and also potentially open to claims against the company.

They have obviously tried to cover their backs and follow the correct procedures, but at the same time they have made mistakes and not treated the employee with enough respect, which has led to this.

As it stands, I think the employee is going to accept redundancy just to get out of there. But submit an application for unfair dismissal when they have gone. It is all very messy and complicated, so it would be fair for an independent body to look at everything and then decide what has actually happened.

Georgiegirl256

Do I have knowledge or experience in this kind of situation....no, but going off the facts provided, the above was just purely my opinion as an outsider, and answering your original question of "Where do you think I would stand?"

Also (again just my opinion), I don't think the last in first out rule applys anymore. Businesses do what's best for them, and the last person in might be the best worker, and someone who's been there over 20 years might not be, so it doesn't always work like that....something my old boss kept on reminding us all on almost a weekly basis, he was a tyrant! :rotfl:

liam8282

Georgiegirl256 wrote: »

Do I have knowledge or experience in this kind of situation....no, but going off the facts provided, the above was just purely my opinion as an outsider, and answering your original question of "Where do you think I would stand?"

Also (again just my opinion), I don't think the last in first out rule applys anymore. Businesses do what's best for them, and the last person in might be the best worker, and someone who's been there over 20 years might not be, so it doesn't always work like that....something my old boss kept on reminding us all on almost a weekly basis, he was a tyrant! :rotfl:

LIFO was just an example of a fair way to select people on redundancy, according to the gov.uk website, so I suspect it is still widely used. In comparison to how this company has selected a person for redundancy, based on working part time and not being able to work full time.

IMO it is the same sort of thing as getting rid of a woman because she gets pregnant. You just can't do it.

Even though everything has been fine, the company fancy changing things and it is more convinient for them to get rid of the mon-fri person because they can only work part time due to having commitments and children, where as the saturday person is a man who does not have these commitments.

Georgiegirl256

liam8282 wrote: »

LIFO was just an example of a fair way to select people on redundancy, according to the gov.uk website, so I suspect it is still widely used.

I think that maybe gov.uk need to update their website then, because IMO it is not a fair way of selecting people at all.

We had this guy at the place where I used to work, (only been there a couple of years) and he was a great worker, great at selling, great with customers, met nearly all his targets, and then we had a group of older women who'd been there for 20-25 years, who basically (although still good at their jobs in their own way), just turned up to chat about latest recipes, grandchildren etc, like it was a social event :rotfl: I know if it came to it for redundancy which one the company would want to keep on as being most productive for their company, don't you? Also, they would be well within their rights too, LIFO is totally antiquated IMO.

I hope your friend gets sorted and everything works out ok, but beware, most companies do everything by the book nowadays to cover themselves from every angle, thus not leaving themselves in a position where they get taken to a tribunal for unfair dismissal, they're not stupid, they know what they're doing, be that right or wrong in the eyes of the employee.