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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I Have been made redundant recently on grounds that I didnt

Customer Question

I Have been made redundant recently on grounds that I didn't have enough attendance. There was a general redundancy in the company and I was picked up on this reason. Actually, the absence was for 9 days each on 2 occasions . 1st when my father was seriously ill and would die any moment according to the doctor who treated him. As I am from India, I had to fly abroad at short notice. Fortunatley, my father pulled through and he lived for another 6 months more. On the 2nd occasion I had to fly again as he actually passed away and I had to attend his funeral. I have all the relevant documents. But the company didn't take my situation into consideration and dismissed me unfairly. I have been working for this company for the past 6 years. Pls advise me what to do and if I have a chance legally
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. When were you made redundant? Was your attendance the only factor you were scored on or was it part of a wider scoring system?

JACUSTOMER-rikwqa9b- :

Hello Ben, I was made redundant yesterday, 2nd may 2014. The attendance was one of the criteria. The other two being disciplinaries and Pd r score which rates how good we are at work. The attendance was the deciding factor in my case. generally my attendance has been very good and apart from the few days I took when my father was sick and when he actually passed away, I have not had any major absences.

JACUSTOMER-rikwqa9b- :

Hellos, I have been waiting for you. Pls assist me asap. Let me know when u r online.

Ben Jones :

Hi, sorry I was already offline by the time you had responded. When selecting employees for redundancy the employer is expected to apply a fair selection procedure and most commonly that would include a scoring matrix where the employees are scored on various subjective criteria. Common criteria include attendance record, disciplinary record, performance, and so on.

When including attendance records as a scoring criteria, the employer can take into account most absences but only needs to be careful if the absences are related to a disability or for pregnancy reasons. Any other absences would have no special protection and can be included in the scoring system. In your case the absence was to fly abroad and be with your ill father. Unfortunately that is neither related to disability nor to pregnancy and even though it was obviously a difficult time for you, it is not illegal for the employer to have included this absence in their scoring matrix for redundancy. As such you cannot really argue that including that absence, even if it was for such personal reasons as being with your dying father, was unfair or that it made the dismissal unfair.

I'm sorry if this is not necessarily the answer you wanted to hear but I hope you understand I have a duty to be honest and explain the law as it actually stands and sometimes this does unfortunately mean delivering bad news. Please let me know if you need me to clarify anything.

JACUSTOMER-rikwqa9b- :

I understand, but on returning from my father's funeral, the company manager phoned me up and told me the days I took for bereavement - 8 days, will have to come off my holidays which I already booked for in august. I agreed to it. but he never called me back to make an appointment with him to sort out the matter with him. If I got the opportunity to meet up with him , I would have put down the 8 days as my holiday; in that case this attendance shortage would not have come up. I feel that he want to lay me off which is why he didn't call me. -pls advise

JACUSTOMER-rikwqa9b- :

Also, I took onlt 8 working days off for bereavement, is that reason enough for redundancy.

JACUSTOMER-rikwqa9b- :

Where do I stand legally? I want to take the matter to the court. How to move legally and what you think is my chance of success. is there any solicitor who does like' no win no fee'.

JACUSTOMER-rikwqa9b- :

how much it could cost me approximately if I go through the solicitor. pls advise

Ben Jones :

Hello, it is not the employer’s duty to book a meeting with you to discuss your time off and whether to put it down as holidays or not. If you had the opportunity to request that this time is taken off as holidays then it would have been your responsibility to ask the employer and raise the issue with them, chasing them until it is resolved. If you simply waited for them and did nothing about this then I am afraid you cannot blame the employer for not putting it down as holidays in the end.

Whether it is 8 days or even just 1 day off does not matter – what matters is whether after the scoring, which would have included your days off, you scored lower than the other employees at risk of redundancy.

If you wanted to take the matter further you can appeal the dismissal with the employer first, and if that is rejected you can go to the employment tribunal and Not many employment lawyers do no win no fee though so you either have to make the claim yourself or engage a solicitor and pay them. The costs can vary significantly but a few thousand is a likely figure. The claim form is here:

https://www.employmenttribunals.service.gov.uk/employment-tribunals

Hope this clarifies your position?

JACUSTOMER-rikwqa9b- :

Hello Ben, sorry that I couldn't communicate with u for 2 days. Today, I sent the appeal letter to the management. I don't think they will consider my appeal favourably. Well, b4 I finish, I would like to know a few more things.

JACUSTOMER-rikwqa9b- :

This redundancy I got is mainly b'coz, I challenged them a few times at being treated unfairly and unjustly at work. Where I work, it is a sort of slavery. There is lot of discrimination and politics. If we question them, we will be trapped and taken disciplinary measures against. Many people suffer there and have no voice. There were so many other workers who actually deserves the sack but they r on good terms with the management. I was picked up in the name of shortage of attendance as they want me out and not question them any more.

JACUSTOMER-rikwqa9b- :

How do we know about our rights at work?

JACUSTOMER-rikwqa9b- :

If we question them and they trap us, how can we stand upto such injustice? On important thing I want to know sir, for how long can we take unpaid leave? This is b'coz, when I came back from my father's funeral (I was absent for 8 working days), my manager asked me to take those days as hoilday which then will come off my actual holiday which I booked for in august for 1 month. I booke the whole of august to go abroad with my whole family. When he told me to take way 8 days from the holday I bookd for in August, I did not agree to it as the whole family was looking forward to that hoiday and removing even 1 day came shatter our travel pland and also our booking with the airlines. I , instead told him I WILL TAKE UNPAID LEAVE FOR THOSE 8 DAYS. But he was not prepared to give it. He got angray and later made me redundant in the name of shortage of attendance. Do I have the right to tell the employer I won't allow to alter my holiday but I don't ming going unpaid? Can I say like that if so, For how long can Anyone take unpaid leave. do I have any chance of success if I go to court? Kindly answer all my questions in detail. I will be leaving you the best feedback very soon. Pls also advise me how to get more knowledge about our rights at work as I feel knowledge is power. Thanks Ben.

Ben Jones :

Hi, an employee is not actually allowed to take unpaid leave without the consent of their employer - You have a contract to work for them and they can expect you to work as per the contract. You can take certain holidays that you are allowed to take by law, but as mentioned the employer can decide when you take them and can refuse your requests if they want to. If that means you want to take it as unpaid leave then I am afraid you cannot do so without getting the employer's approval first otherwise it would amount to an unauthorised absence from work.

There are circumstances when you are allowed top take unpaid leave from work to look after any dependants, but it is unlikely that your father would have been classified as one because he was not living with you here at the time nor were you looking after him as your dependant - he was living in a different country and obviously being looked after by others.

In terms of going to court, you now have to contact ACAS first before you can make a claim. ACAS offer free conciliation services, where they negotiate between you and the employer to try and reach a settlement without having to go to court. So there is no harm in trying that first and using them to negotiate with the employer and maybe getting some financial compensation, but if that does not work you are then looking at making a claim in the employment tribunal and as you will be claiming unfair dismissal you will have to leave it to the employer to justify that there was a genuine reason to dismiss you, such as the redundancy and that you were selected fairly. As mentioned, absences can be a fair reason, so if that was the only thing that made you score less than others, it could be a reason to select you for redundancy but it is impossible to predict the outcome of a claim with the very little information I have so all I can do is advise you of your rights and what you can do to challenge them

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

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