Selected for Redundancy - Employment Tribunal - Likelihood of Success?

Bungle5393

Went through a fairly comprehensive Consultation process in May/June and was selected for redundancy.
As part of this process, the Company had several internal vacancies which it made available to everyone to apply for.
I applied for 2 of the vacancies, both of which were at a slightly lower level to the role I was previously doing.
For one of the roles, it went to a more experienced internal candidate who was also facing redundancy from her job - fair enough.
The second role was awarded to an external candidate over me after it had been whittled down to just the two of us; this person was a previous colleague of the hiring manager for that role. At no point did they advertise any of the roles externally, and the Company's redundancy policy makes reference to "reducing the number of redundancies wherever possible" and that "showing a willingness to transfer to another job/department will help this process" as well as mentions of job trials. There is no mention in their redundancy policy of continuing to recruit outside the business. I will add that this role doesn't require any specific qualifications and was similar in nature to the role I was doing previously (retail field management). It is my belief this is a "jobs for the boys" situation.

I have appealed the decision to dismiss me, I have raised a grievance about an external candidate being recruited and am now in the process of appealing the grievance outcome (get lost, we've done nothing wrong). So far my employer is not willing to admit anything untoward has happened (not that I expect them to).

The next stage is to raise an early conciliation through ACAS before taking them to a tribunal as I believe they have breached their own redundancy policy by recruiting an external candidate for this role. A colleague of mine who was also made redundant (with different issues/concerns) raised an early conciliation 1 month ago through Acas and the Company have just ignored it.

Million dollar question, but what are my chances of success?

nicechap

Bungle5393 said:

Went through a fairly comprehensive Consultation process in May/June and was selected for redundancy.
As part of this process, the Company had several internal vacancies which it made available to everyone to apply for.
I applied for 2 of the vacancies, both of which were at a slightly lower level to the role I was previously doing.
For one of the roles, it went to a more experienced internal candidate who was also facing redundancy from her job - fair enough.
The second role was awarded to an external candidate over me after it had been whittled down to just the two of us; this person was a previous colleague of the hiring manager for that role. At no point did they advertise any of the roles externally, and the Company's redundancy policy makes reference to "reducing the number of redundancies wherever possible" and that "showing a willingness to transfer to another job/department will help this process" as well as mentions of job trials. There is no mention in their redundancy policy of continuing to recruit outside the business. I will add that this role doesn't require any specific qualifications and was similar in nature to the role I was doing previously (retail field management). It is my belief this is a "jobs for the boys" situation.

I have appealed the decision to dismiss me, I have raised a grievance about an external candidate being recruited and am now in the process of appealing the grievance outcome (get lost, we've done nothing wrong). So far my employer is not willing to admit anything untoward has happened (not that I expect them to).

The next stage is to raise an early conciliation through ACAS before taking them to a tribunal as I believe they have breached their own redundancy policy by recruiting an external candidate for this role. A colleague of mine who was also made redundant (with different issues/concerns) raised an early conciliation 1 month ago through Acas and the Company have just ignored it.

Million dollar question, but what are my chances of success?

Define success.  What is your desired outcome.

Between 3% and 7% of ET claims are awarded in favour of the employee, similar % in favour of the employer, most are settled, negotiated, withdrawn before a hearing. Typical payouts are under £10k.  ET's can't get your job back although I do recall a sex discrimination case did have an additional payment if the claimant wasn't re-instated, the employer just paid the extra money. 

Bungle5393

nicechap said:

Bungle5393 said:

Went through a fairly comprehensive Consultation process in May/June and was selected for redundancy.
As part of this process, the Company had several internal vacancies which it made available to everyone to apply for.
I applied for 2 of the vacancies, both of which were at a slightly lower level to the role I was previously doing.
For one of the roles, it went to a more experienced internal candidate who was also facing redundancy from her job - fair enough.
The second role was awarded to an external candidate over me after it had been whittled down to just the two of us; this person was a previous colleague of the hiring manager for that role. At no point did they advertise any of the roles externally, and the Company's redundancy policy makes reference to "reducing the number of redundancies wherever possible" and that "showing a willingness to transfer to another job/department will help this process" as well as mentions of job trials. There is no mention in their redundancy policy of continuing to recruit outside the business. I will add that this role doesn't require any specific qualifications and was similar in nature to the role I was doing previously (retail field management). It is my belief this is a "jobs for the boys" situation.

I have appealed the decision to dismiss me, I have raised a grievance about an external candidate being recruited and am now in the process of appealing the grievance outcome (get lost, we've done nothing wrong). So far my employer is not willing to admit anything untoward has happened (not that I expect them to).

The next stage is to raise an early conciliation through ACAS before taking them to a tribunal as I believe they have breached their own redundancy policy by recruiting an external candidate for this role. A colleague of mine who was also made redundant (with different issues/concerns) raised an early conciliation 1 month ago through Acas and the Company have just ignored it.

Million dollar question, but what are my chances of success?

Define success.  What is your desired outcome.

Between 3% and 7% of ET claims are awarded in favour of the employee, similar % in favour of the employer, most are settled, negotiated, withdrawn before a hearing. Typical payouts are under £10k.  ET's can't get your job back although I do recall a sex discrimination case did have an additional payment if the claimant wasn't re-instated, the employer just paid the extra money. 

Sorry, i should have been clearer in that last sentence.
What I meant was - "what are my chances of an employment tribunal finding in my favour and deciding I have been dismissed unfairly?".
I'm fully expecting them to settle before it gets to tribunal, I would be looking for something around the £20k mark as that would be roughly 6 months salary and taking into account how difficult it is to find another job at the moment. But I know I will probably have to accept £10k-£15k after negotiation.
I'm not expecting them to make me any kind of job offer, I wouldn't want to go back there now as I don't feel the working environment would be anything other than negative.

lincroft1710

If the company can show that the "external candidate" would be more suitable for the new role than you, I'd say your chances of success were slim. Remember that jobs are redundant, not people. Your previous role was redundant and you were not considered good enough for the new role. A business has a duty to itself to employ the best people possible.

Believing a policy has been breached isn't enough, you have to be certain it has been breached.

Bungle5393

lincroft1710 said:

If the company can show that the "external candidate" would be more suitable for the new role than you, I'd say your chances of success were slim. Remember that jobs are redundant, not people. Your previous role was redundant and you were not considered good enough for the new role. A business has a duty to itself to employ the best people possible.

Believing a policy has been breached isn't enough, you have to be certain it has been breached.

Does a business not also have a duty to follow their own policies as laid out in documents visible to all staff?

Here is an extract from the policy, there is no mention at all about hiring external candidates in the event of a redundancy situation; rather the policy clearly states they will actively seek to retain as many internal people as possible. Plus this role wasn't advertised externally at all, so who is to say the mate of the hiring manager is the best person for the job?

"The Company’s policy is to avoid redundancies wherever possible and to provide secure employment for all of its employees. You can help to achieve this objective by maintaining a flexible attitude to working practices and willingness to transfer to another job or department and make the best use of the training you have received. However, in the event that a redundancy situation occurs, the following procedure will be followed:
• Attempts will be made to transfer employees to another job/department, initially on a threemonth trial.
• The total number of redundancies made will be kept to a minimum and the Company may consider requests from employees for voluntary redundancy. "

JReacher1

It doesn’t look like they’ve breached their policy. There is nothing written down that says they have to give any available vacancy to an employee at risk of redundancy. 

I can’t see how you will win this case. Your position is redundant and you’ve been unsuccessful in applying for another position within the company. That doesn’t sound like unfair dismissal. 

Bungle5393

JReacher1 said:

It doesn’t look like they’ve breached their policy. There is nothing written down that says they have to give any available vacancy to an employee at risk of redundancy. 

I can’t see how you will win this case. Your position is redundant and you’ve been unsuccessful in applying for another position within the company. That doesn’t sound like unfair dismissal. 

"Avoid redundancies wherever possible" - recruit an external candidate causing me to lose the opportunity. Strike 1.
"...willingness to transfer to another job..." - ignore this willingness on my part. Strike 2.
"Attempts will be made...initially on a 3 month trial..." - I was not offered any kind of trial at all. Strike 3.

When I spoke to ACAS about this, the chap felt it was a bit strange that I had applied for a role at a level below that which I was previously doing and was not even offered a job trial to determine my suitability before going with the external candidate.

If the policy clearly said that they would advertise all vacancies externally and a fair assessment process would be followed then I wouldn't have an issue with it. My beef is that they have said one thing in their published policy and then done the exact opposite.

There were 8 vacancies in total, none of them were advertised externally. This is the only position where an external candidate was hired.

lincroft1710

You need to read their policy a little more carefully and realise what it actually says.

1. "Avoid redundancies wherever possible" -  firstly jobs are redundant not people, secondly "wherever possible" isn't a guarantee that every employee whose job becomes redundant is found another job.
 
2. "Attempts will be made" - they did make an attempt, but you were unsuccessful.