Cancer and Disability and Discrimination Act

jonnygee2

Maybe I'm misreading it but they haven't actually dismissed him, they've made him redundant. They also offered him the chance to apply for the role, which he refused.

They haven't made him redundant because the job he is contracted to do still exists, and someone else is doing it.

You make a specific role/position redundant, not a specific person. They have offered him a payout and called it 'redundancy pay' but that's a misnomer. It's not a redundancy.

Gavin83

jonnygee2 wrote: »

They haven't made him redundant because the job he is contracted to do still exists, and someone else is doing it.

You make a specific role/position redundant, not a specific person. They have offered him a payout and called it 'redundancy pay' but that's a misnomer. It's not a redundancy.

I'm aware of what redundancy is but thanks for the clarification.

They're claiming it's a new role from what I can tell and the old role was made redundant. The OP doesn't agree. Ultimately it'll be down to a judge to decide who's right.

jonnygee2

They're claiming it's a new role from what I can tell and the old role was made redundant. T

The way I read the OP, the original job is still there, still being covered by the person who was hired as 'interim'. And then they have offered another 'similar' job to the OP's husband instead, which he rightly refused.

There may be some ambiguity in this though, rereading the OP. It would definitely be more complicated if the old role had actually been made redundant while he was on leave or on return.

Undervalued

Les79 wrote: »

OP; I have cut my post down a bit tonight but PM me and I will try and point you in the right direction as best as possible if you private message me:)

I would strongly advise anybody not to accept advice by PM from any anonymous poster on this or any other forum.

If the advice is posted on the forum it gives the opportunity for anybody who disagrees to say why they believe it to be wrong.

As stated previously, the OP's husband need to seek professional advice from a solicitor.

For information, the following is copied from the forum rules.....

I want to give advice, why can't I?

If you're discussing a topic you have a professional knowledge of you can make that clear, but please don't give "advice". We don't have the resources to check what you say is correct and would hate to hear something had happened to someone reading it.

Equally, this is an open forum, so ordinary forum users should bear in mind anyone can say anything. Just because someone says they're an IFA, broker, electrician, etc and sounds knowledgeable, doesn't mean they ARE one. We obviously can't check that what everyone on the forum says is true. As always, it's essential everyone using the site does their own research.

Gavin83

jonnygee2 wrote: »

The way I read the OP, the original job is still there, still being covered by the person who was hired as 'interim'. And then they have offered another 'similar' job to the OP's husband instead, which he rightly refused.

There may be some ambiguity in this though, rereading the OP. It would definitely be more complicated if the old role had actually been made redundant while he was on leave or on return.

I read it that the old role had been made redundant, they've created a new role and either the OPs husband has to compete with the replacement for this new role or there were roles potentially for both of them. As you say it's fairly ambiguous and some clarification from the OP would help.

I suspect most companies wouldn't be stupid enough to directly screw someone over like this as a quick google would show they'd be on shaky ground. I suspect they believe if they make the role redundant and create a similar role it'll be considered redundancy and they'll be free to get rid. They might be right.

The OP says the new role is virtually identical, which they would say. I'm assuming the employer would say it's completely different, which they'd also be likely to say regardless. Its ultimately up to a judge to decide. Some of the circumstances doesn't do the OPs husband any favours though.

OP, I'm assuming the changes to the job weren't in your husbands favour? You say the roles were virtually identical so what were the changes?

Linton

For management roles companies frequently reorganise, move people around etc. Your job is simply as a manager, not the manager of a particular department until death/retirement. The last company I worked for reorganised departmental responsibilities/boundaries and moved managers around every few years in the natural course of events. It would have been better if your husband had applied for the role and if his application was unsuccessful he could reasonably expect to be offered something else at the same pay and conditions or be made redundant if there was no such role available.


On the information given it seems to me that the company has behaved reasonably going well beyond what it is legally required to do. From a practical point of view I cannot see him getting very far legally unless it could be clearly proved that what happened was due to his illness. This is likely to be extremely difficult to do. Much the same could easily have happened if for example he had been given sabbatical leave for education or some other reason.


Even if he won a case would it do him any good? The company cannot be forced to re-employ him in his old role. Would any compensation be greater than what he has been offered anyway? What taking legal action certainly would do is to put his career on hold until it was resolved. It would not improve his chances of finding another job - if asked at interview what he has been doing for the previous 6 months he can hardly say he has been taking his old employer to court. So what he should do now is to move on and look for a new job that matches his experience and abilities.

Undervalued

Linton wrote: »

Even if he won a case would it do him any good? The company cannot be forced to re-employ him in his old role. Would any compensation be greater than what he has been offered anyway? What taking legal action certainly would do is to put his career on hold until it was resolved. It would not improve his chances of finding another job - if asked at interview what he has been doing for the previous 6 months he can hardly say he has been taking his old employer to court. So what he should do now is to move on and look for a new job that matches his experience and abilities.

Exactly. Sadly this is an excellent summary of the real world position in the majority of such cases.

As has been said earlier, the OP's husband should certainly take proper legal advice about the likely chances of making a successful claim and the likely value of such a claim were it to succeed. Remember however that even the best legal advice is just that, advice. It is an expert opinion based on what the solicitor thinks a judge is likely to decide, given initially without having heard the other side's arguments.

Even if that advice were to be encouraging he then needs to consider the other aspects before deciding what is in his best overall interest.

Obviously it is a difficult situation and one with which we can only sympathise. There are times when legal action may be the best option and it is possible that may be the case here. However, proceed carefully and do what is in your best interest given the difficult situation.

Amanda65

Thanks everyone and apologies for the radio silence.

To clarify the JD for the 'new' role was not materially different from his current job and was sent through with no mention of remuneration. The decision to not apply was on the recommendation of ACAS who advised that by applying he could be seen to be accepting it was a different job.

What does he want? Well he wanted his job back! He's had an incredibly tough few months literally fighting for his life and one of his focuses has been getting back to work and this has hit him terribly hard. He has been very down since the decision. He now feels though that if he did go back they obviously don't want him and would likely performance management him out. He had had nothing but glowing feedback prior to becoming ill.

The next step is to now speak to a solicitor and to whoever suggested checking with our home insurance for free legal advice we will, thank you. We are not trying to be greedy but he does have a genuine concern that at 58, having had a brain lymphoma) and being unable to drive for two years (DVLA is another battle he is fighting) that he will struggle to find something local and meaningful until retirement.

Undervalued

Les79 wrote: »

I would additionally recommend considering a Subject Access Request so your husband can obtain his personal data from the company (takes 1 month usually). The idea being that you can see what documents they may bring up (or any that YOU can bring up) if you take this further.

Yes, depending a little on your own judgement of the ethics of the company concerned!

Obviously it should give your husband a copy of all of the data the company holds. However it is very hard to police unless you already have a copy of what they should be disclosing! They are unlikely to be stupid enough to omit the obvious and yes, you may be lucky and they give you something useful. It will of course tip them off that you are looking for ammunition to help with a claim. If they are of a mind to "lose" anything that is inconvenient then they are likely to do so before it "goes legal".

If you are going to speak to a solicitor I would be guided by them about how / if / when it is best to try a SAR.

Undervalued

Les79 wrote: »

Most of the documents I mentioned are neutral in nature (contract, disciplinary record etc). That would be great if you were to, for example, be charged by the hour by a solicitor and need to get across some of the finer points more precisely.

The internal emails one...

1. Nothing which hinders the company will likely ever be revealed during any tribunal/

Legal action, so any deliberate omission would not put OP at a detriment (and there's the risk of the company being liable for an ICO fine if caught).

2. Op may be able to better understand their potential arguments a tad better and prepare.

3. It is sort of like superposition in that having access to the data now can raise the question as to why any future submissions were omitted from the original SAR request.

Additionally, in my experience the managers and hr are detached from the person who handles GDPR request, aside from collating the odd bit of data. So it could be actioned by someone a bit more concerned with their job and ICO compliance.

Some people would find it easier to just go straight to the solicitor but not me personally. If I'm paying someone am hourly rate then the first hour will be jam packed with every document I can produce and every argument I can think of. Each to their own like tho.

That bit is what I was meaning when I said

Yes, depending a little on your own judgement of the ethics of the company concerned!