Advice please! suspected constructive dismissal

Pricivius

Okay, so now it's not voluntary at all and all three PT employees have been put at risk and have been advised that their 3 PT jobs are moving to one PT job and one FT job. All three have been offered the FT job and only one has confirmed any interest. As this is a consultation, your friend should be making lots of arguments to keep the status quo - they should be putting forward all the benefits of three staff and all their individual personal skills and abilities which would be lost. If the reasons for the change are financial, they should be proposing alternative solutions such as dropping salaries, perhaps on a temporary basis until things pick up, everyone working slightly less hours, taking unpaid holiday, taking less paid holiday if curently offered more than the statutory minimum etc... There are lots of ideas to put forward that the employer has to consider in a genuine consultation.

However, I still don't see where the reduction is that makes this a redundancy. If it isn't, and your friend takes it to tribunal, the tribunal is likely to question this and any payment your friend receives as redundancy pay could be offset against any award as there was no entitlement to it. In a worse case scenario, she could lose the claim and be asked to pay it back.

Can a company restructure the workforce in the interests of the business? Yes. Providing the company can explain that a FT employee makes more business sense in terms of being cheaper, offering greater continuity etc., then they can justify this decision. Just because at one time it made sense to have three PT employees it doesn't mean that this will always be the case. Please bear in mind that tribunals currently have some sympathy with employers who are struggling and if they can show that they needed to make the saving which comes along with making two PT roles into one FT role, it would be difficult for the tribunal to suggest that the employer should have let the business fail in order to keep the two PT staff.

liam8282

"Okay, so now it's not voluntary at all and all three PT employees have been put at risk and have been advised that their 3 PT jobs are moving to one PT job and one FT job. All three have been offered the FT job and only one has confirmed any interest."

It isn't voluntary, one person has been selected out of the three, for the reasons already mentioned. The other two not at risk and not considered for redundancy.

Only one of the saturday people has been offered training and the job, the other saturday person probably doesn't know anything about any of this. It will be interesting when they find out.

I agree that businesses can restructure and can get rid of staff how they see fit, but they must do it following the correct procedures and have legitimate reasons for doing so.

Let's not forget people have families to support and a mortgage to pay, so as you say the company must have good reason to do this and be able to back this up when it comes down to it.

So far, I cannot see any logical or fair explanation for this, other than it suits them to have a male without commitments, rather than a female with children.

The reason for wanting to take it further, is just to expose the company for how they treat their staff and to be honest make the person feel a bit better for how they have been treated. It is not really the financial motive, more of a moral motive, that you can't treat people like this and get away with it.

UnionGirl

I can confirm that LIFO is no longer used. Criteria used is standard of work produced, amount of sick leave used, and meeting the essential/desirable criteria of posts.

If an employee was a member of a Trade Union and the employer used LIFO, the Trade Unions would have a field day, and the employer would find themselves in front of an Employment Tribunal if they didn't back down.

BTW, I work for a trade union.

Takeaway_Addict

UnionGirl wrote: »

I can confirm that LIFO is no longer used. Criteria used is standard of work produced, amount of sick leave used, and meeting the essential/desirable criteria of posts.

If an employee was a member of a Trade Union and the employer used LIFO, the Trade Unions would have a field day, and the employer would find themselves in front of an Employment Tribunal if they didn't back down.

BTW, I work for a trade union.

I think people would have got this via your name

though as a side I thought LIFO could be used as one of the selection criteria regarding redundancy but not solely

Pricivius

There's a time and a place for LIFO... For example:

Two employees, same age, same skill level, same sickness. One started two weeks before the other. What's wrong with LIFO in this instance?

But back to the OP, it sounds as though your friend is in a pool of one and should ask why the pool does not include her PT colleagues.

Can you see that one FT role is cheaper than two PT roles? And if so can you see that it would fair for the company to cut costs by making two PT roles into one FT role which is offered to both employees, providing they can show financial difficulties and prove the savings? Which would be a logical/fair explanation?

liam8282

The number of hours and costs will be going up, from say 27 hours split over the two staff, to say 35 for one.

It is not a cost cutting exercise as they will in fact be paying for more hours.

They are just getting a member of staff for an extra 2 hours a day (3-5) and one that can work alternate weekends.

If they were making the other Saturday person redundant, it would cut costs and hours, but they can't, because the full time role won't work 6 days a week every week.

liam8282

There seems to be a debate going on about LIFO now.

I only chose it as it was first on the gov.uk website list.

It is a fair way of selecting staff, all things being equal.

I was watching rogue traders last night and I think I got an answer to one of my questions. Asking to sign disclaimers isn't worth the paper it is written on, because you cannot sign away your legal responsibilities. So in this situation, they could accept redundancy and still submit a claim for unfair dismissal when they have gone. If only to make sure the company realise that they can't just do this sort of thing as they choose.

Pricivius

Unless it's a compromise agreement, signing away your employment rights would not be effective.

Why "accept" redundancy? It's not something to be accepted unless it's voluntary which I think we have now established it isn't. It is something to be consulted on and then the company decides whether to dismiss by reason of redundancy. If your friend intends to fight, she should be fighting now, setting out all the reasons why this is bogus and then appealing it if the decision is to dismiss. A tribunal may have less sympathy if she silently goes along with it, signs her rights away, does not appeal and then sues - not to say she would lose because of this, but it would make them question things more.

If the hours are actually increasing, it is even less likely to be a genuine redundancy. Has she asked them to explain why this is a redundancy? You seem intent on an ET claim when there has been no dismissal yet - take one step at a time!

Georgiegirl256

Pricivius wrote: »

If your friend intends to fight, she should be fighting now, setting out all the reasons why this is bogus and then appealing it if the decision is to dismiss. A tribunal may have less sympathy if she silently goes along with it, signs her rights away, does not appeal and then sues - not to say she would lose because of this, but it would make them question things more.

Exactly this! If she signs her rights away and THEN goes to a tribunal, she probably won't have a leg to stand on.

liam8282

Because of the way she has been treated she just doesn't want to be there now.

So in effect she has been forced out and the business has got what they wanted, no matter of the effects to the employee who is the innocent party in this.

Wanting to take the company to a tribunal at a later date, is more of making the company realise that they cannot treat staff with this sort of contempt, at the end of the day this is a persons life that is being messed up.

I will find out more today, because there is another meeting.