Unfair dismissal dressed as redundancy

Sherlock_Holmes

Hello all,

I’ve just been made redundant from my senior management rolewith in a healthcare manufacturing company. This comes after being “Head hunted”for the role in September 2011. When the company approached me I was reluctantto leave my last company as my wife had just had our daughter and I didn’t thinkit was the right time to be leaving a very secure job in the current financialclimate. However the company continued to beg me to join and offered me a 6 monthnotice period for the first 12 months to reassure me that they were committedto the new venture they wanted me to start in the Midland area. Before Istarted I made it clear to my potential new employers that it wasn’t going tobe an easy task to start business in a difficult financial climate selling intocash strapped councils and NHS establishments, they completely agreed with meand said they were behind me 100% and they realised it was a slow burn andcould take several years to get of the ground.

My role was to start from fresh a branch in the Midlands forthe company that had been running in the North East. At the meeting I had forthe job, the MD said that sales had plateaued in the NE so they need to spreadthe operation further south. When I first started in January 2012 I was given 2months training on the product, then I was on my own. The companies plan wasfor sales to increase then when the Midland operation was self- sustaining theywould purchase a depot in the Midlands for me to work from. For the foreseeablefuture they were going to send a fitting team down from the NE to cover all mywork and I was to work from home.

The first 12 months seemed to be going very well, there waspositivity from my direct line manager and the MD himself at the end of October2012. Taking into account the company based in the NE turned over £768000 last financialyear,(They’ve been operating 12 years with 15 people in the work force) Iturned over £120,000 in my first year on my own. I thought this was a prettygood effort from a standing start. However after Christmas/ New-year I sensed achange of tone from the company, I couldn’t put my finger on it; but there wasa change in positivity that I had received prior to the end of the year. I hada review meeting at the end of January 2013 with my line manager; we discussed thatmy costs needed to be covered in the next 12 months and other avenues of businessI could explore. I asked him for the amount of business I needed to bring in tocover my £50k per year costs, he told me I needed to make between£200-£300,000. I must admit at the time I was shocked to discover the I need tomake so much just to cover my costs, I worked out the profit margins for a manufacturewe’re very low at 20-25%. I also thought that for me to increase my turnover35-40% of the established NE operation was going to be very tough. My linemanager remained positive, he didn’t mention my job could be on the line ifthese cost wasn’t met and gave me a 2% pay increase and a new set of cashreward targets. The lowest threshold was £75000 to get a £1000.00 bonus rightup to £400,000 to make £4000 bonus. The next few months seemed to be going fine;I was on target to make about £160,000 before the end of the year so though allwas fine. That was until 23rd May 2013 when my line manager askedfor a meeting to let me know my position was at risk from redundancy. Over thenext 6 weeks the consultation period took place and my redundancy was confirmedon the 13th June. Because I’d work for them less than 2 years I amonly entitled to 1 months’ notice which finishes next week. As you can imagine I’m both angry and worriedas I’ve got a large mortgage and a little girl to support. I wouldn’t of beenso annoyed if I hadn’t stressed my thoughts and concerns before I started.



The company has followed the correct procedure as far as theredundancy is concerned but I feel this is dismissal dressed as redundancy. Ifeel the company has used the redundancy excuse as it felt it was the fareasier action to take as it realised they hadn’t been completely honest totheir expectations. I have appealed the decision on these grounds and statedthat I feel it is unfair dismissal dress as redundancy and will be taking mycase to a employment tribunal based on this. I have asked for full pay to theend of the year and use of my company car as way of compensation for themleading me up the garden path and to cover me until I gain future employment. Ihave a grievance meeting with the MD tomorrow and wondered if anybody any advicefor me?

Thank you in advance

jacques_chirac

I fail to see what claim you have against them. Many people have dismissals which are dressed up as redundancy, but no tribunal is going to make an award if the employer can show a) that they followed procedure, and b) that their decision to make you redundant was reasonable.

Even if you did have a case, your suggested remedy is way too much - asking for six months salary plus car when you have been there less than two years is completely over the top.

ILW

Sorry, but it sounds like you were put in charge of a new division and it just failed to work out. Thats life.

zzzLazyDaisy

To be honest OP, very few posters are going to get to the end of that block of text.

The relevant facts seem to be that you started in January 2012 so the old 12 months service rule applies. This means that you have protection from unfair dismissal (this means that you have to show that the employer did not have a fair reason to dismiss or failed to follow fair procedures).

You do not have the two years' service necessary for a statutory redundancy payment.

It sounds like the employer has followed a fair redundancy procedure, and you seem to agree with this.

So the question is... Is this a genuine redundancy situation?

To answer that we need more information:

1 Was this a stand-alone post? By this I mean, there was only one such role in this location, and you were the post holder.

2 Has the role you occupied been discontinued/ceased to exist?

3 Will the office now close?

4 Are you aware of any other vacancies or openings in the organisation that you would consider to be suitable for you?

If you come back with answers to these questions we will be able to look at this.

Sherlock_Holmes

Thank you for the reply. I'm not after the full six months it's a method for negotiation. My grievance is that had they communicated their business plan in the first instance that would of been enough for me not to take the role. After 12 months of employment and finding out that the company need half of it's turnover it had taken 12 years to achieve was obvious that it wasn't going to work. Redundancy is used for "Unforeseen issues" but anybody with half a brain could see that a manufacturing company making 25% profit was not going to work in the current climate. Unfortunately I was given this information before leaving my secure job. I don't see why I should be out of pocket for the companies "roll of the dice" I could understand if over a longer period profit margins had dropped effectively making my role redundant but within 17 months they knew exactly from day one what was needed to be achieved and they kept this from me.

In answer to your questions lazy daisy



1 Was this a stand-alone post? By this I mean, there was only one such role in this location, and you were the post holder.

Yes I was the only post holder, the company is based in Hartlepool so I was working remotely.

2 Has the role you occupied been discontinued/ceased to exist?

As far as I know, it will cease to exist once I leave the role, but my line manager has let it slip they are employing someone on half my wages slightly 100 mile north in Manchester, I can only assume they will use this person to cover the account I have won in the Midlands.

3 Will the office now close?

There was never a office as we never really got going, they will continue to cover existing works from the Northeast HQ

4 Are you aware of any other vacancies or openings in the organisation that you would consider to be suitable for you?

The company is based 195 miles north of where I live, so very little chance of any other roles

If you come back with answers to these questions we will be able to look at this.

Sherlock_Holmes

And thank you for your replies

zzzLazyDaisy

Okay, from what you say this was a genuine redundancy situation as defined by S139 Employment Rights Act 1996

http://www.legislation.gov.uk/ukpga/1996/18/section/139

Specifically that the requirements of the business for employees to carry out work of a particular kind (ie the role you were employed for) in the place where the employee was employed by the employer have ceased or are expected to cease.

The next issue then is that the employer has a duty to look for suitable alternative work within the organisation and, if such a vacancy exists, to offer it to the employee as an alternative to terminating the employment. You have confirmed that this is not an option.

Based on the information you have provided, my own view is that your prospects of success in a tribunal claim are poor (but of course that is only my opinion and you should take independent legal advice if you are considering this route).

With regard to your meeting with the employer - since you don't have much of a case for compensation in law, I can't see the employer being too keen to enter into settlement discussions with you on the 'dismissal dressed up as redundancy' point.

This leaves the issue of the contractual notice - more information needed:

Am I right in understanding that your contractual notice on starting was 6 months, but somewhere along the line it was changed to 1 month?

Were you given a written contract of employment when you started?

If so what did it say about the notice period?

If it said six months, when was this changed to 1 month?

Were you given a new written contract at this point, or was this confirmed in writing?

notanewuser

Would HAVE

Would HAVE

Would HAVE!!!

getmore4less

Looks lik a fare redundancy to me

I think you failed to research the company and the role in enough depth.

Should have insisted on 6 month notice minimum(not dropping to one month after a period).

MisterMan_2

jacques_chirac wrote: »

I fail to see what claim you have against them. Many people have dismissals which are dressed up as redundancy, but no tribunal is going to make an award if the employer can show a) that they followed procedure, and b) that their decision to make you redundant was reasonable.

Even if you did have a case, your suggested remedy is way too much - asking for six months salary plus car when you have been there less than two years is completely over the top.

It's standard negotiation practise to start bartering from an unreasonable amount, in order to get a satisfactory outcome.

ILW

Surely it is better for future prospects to be made redundant, rather than be sacked due to lack of performance? Sounds like they are being generous.

In my experience, sales has always been a slightly risky and rather brutal career.