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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Do I have a reasonable case for unfair dismissal? I was employed

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Do I have a reasonable case for unfair dismissal?
I was employed October 2008 as General Manager responsible for a wide range of functions within the company, reporting to the MD
In my entire time with the company I have not had a formal appraisal, but have received bonus payments on occasion
In February 2012 a new Operations Director was employed and I then reported to him. I was not given the opportunity to apply for this role and was told after he had been appointed. The Operations Director reports to the MD and took over my office.
Since February 2012 I have had significant parts of my responsibility take from me by the Operations Director but at no time was I told about it in advance or given any indication my performance was substandard. I have retained my job title and salary.
In the last 12 months a number of changes have been made in terms of staff and organisation in my area that I disagree with. I was not consulted about these in any significant manner and had to implement them. I have raised these verbally and in writing to some extent. In addition my boss has frequently gone direct to my staff without consulting me and my position has been somewhat undermined.
In the last month I have been told my position is redundant and been offered my contractual notice plus statutory redundancy pay. I wrote to the company explaining that my position has been undermined in the last few months and that I condir the redundancy is only being made because I had not resigned.
On Wednesday 26 February I was told a new person is starting on Monday 3 March, and will be based in my office, doing a large proportion of my existing job (but not all of it, with a different job title). I have been told that I will be expected to work 2 months of my 6 months notice period, but based at a different site within the company/from home.
I have been offered a compromise agreement, paying my last 4 months notice period such that I can take £30000 as a tax free termination payment (including my statutory redundancy pay).
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What is it that you want to achieve here?

JACUSTOMER-meawlv3m- :

Firstly to see if I have a case that has some chance of success, in which case I would consider rejecting the settlement agrement. As I am over 55 I beleive I can get as much tax releif as the settlemet agreement by putting a large chunk of my notice pay into my pensin and take it out immediately tax free). The risk is that my emplyer forces me to work my full 6 mnoth period.

Ben Jones :


Thank you. Please leave this with me, I am mobile for most of today so it may be difficult to provide a full response straight away but I will get my advice ready and get back to you on here as soon as I can, certainly no later than tomorrow morning. Thanks for your patience.


Ben Jones :

Many thanks for your patience. Whether this was an unfair dismissal would mainly depend on two things – was there a genuine redundancy situation and was a fair redundancy procedure followed.



The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).



The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:



  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

  • There is less work of a particular kind, but the same number of employees are required overall.


 


So as long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied and the focus then shifts on the remainder of the redundancy procedure. This would include what consultation took place, whether any suitable alternative employment was offered to those at risk and the general fairness of the redundancy procedure applied by the employer.


 


If there was no genuine redundancy situation or no fair procedure, the dismissal could be unfair and you may consider using this as a negotiating tool to try and increase the settlement agreement value or to make a claim for unfair dismissal in the employment tribunal.

JACUSTOMER-meawlv3m- :

Thanks. I agree that my employer could argue that a redundancy situation has occured, due to economic pressure/re organisation.. .

JACUSTOMER-meawlv3m- :

Sorry, pressed enter my mistake. However my employer has recruited, without my knowledge an without any internal advertising, a persn woh is going ot do 80% of my role, and I was not offered the oppoertunity ot disucc the situation and come up with alternative proposals (which I understand is a key part of the consultaion exercise). I would have considered a change of role, and indeed a pay reduction if necesary.

Ben Jones :

part of a redundancy procedure is to try and offer the affected employees suitable alternative employment to try and avoid the need for redundancy and keep the employee in a job. Even if the job is somewhat different, as long as the employee can do it then it should be offered to them and they will decide if it is suitable and something they would like to take up instead of being made redundant. So procedurally the dismissal could be unfair for that reason

Customer:

thanks, XXXXX XXXXX summary do you think I have a reasobable case? I certainly do not expect it to go to trbunal, I just want to put some pressure on and look for a modest incrae in my settlement of £4000-5000.

Ben Jones :

In terms of negotiations - yes, you may certainly raise these issues and use them to try and get an increase to the current offer, you my threaten tribunal even if you have no plans to go that far

Customer:

Thanks, XXXXX XXXXX

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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