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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44871
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi I hope you will be able to help me. I have been working

Customer Question

Hi I hope you will be able to help me. I have been working for M&S since Nov 1985. Approx in Feb 2012 it has been announced that HR in stores will no longer exist. We have been expecting that all HR adviseres will be made redundant, however we than heard that only HR advisors in PIMS centers will be offered option of redundancy. Others in so called child stores will remain and conduct other duties, amongst them recruitment, as 11% of our role would remain. I worked as part of HR team in Colliers Wood store with 2 other colleagues at the time of that announcement. As my background before joining the store for the opening in 2008 has been recruitment, since approx Aug 2012 I have been performing a role of regional recruitment advisor for 6 stores. I learned last Nov that my 2 coleagues have grieved against the decision not to be offered redundancy, and as a result they have now both been made redundant.
As I didn't feel that I have been treated fairly I first wrote in Dec 2013, than in Feb 2014 which resulted in a hearing with a recruitment manager in April 2014. His decision was not to uphold my grievance and I have appealed against that decision in May 2014. I have now received a response to my appeal form stating that my appeal will not be heard as I have not provided sufficient evidence to explain why the decision made was not logical or reasonable.
I have also just heard about another colleague, who has also been a HR advisor in another store, who is due to leave. However when I spoke to her in the middle of May about her alleged appeal, she has told me she was sorry but she could not discuss it!
I have just returned from my holiday yesterday and tomorrow will be able to confirm the basis of her leaving.
Do you think you might be able to help me? I really don't believe that my employer has acted fairly!
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. What are you hoping to achieve in this situation?
JACUSTOMER-touq0kk8- :

Hi Ben

JACUSTOMER-touq0kk8- :

As I said we were hoping that since the HR activities were being stopped and HR no longer existed in stores, we would all be offered an option of taking redundancy. Since this has only been offered to those of our colleagues in PIMS centers, we were disappointed. Number of colleagues in "child" stores have challenged this, been successful and have since left the company. However this is kept very quiet and no one mentions that cases are being re-viewed and when you mention anything, they say "they can not discuss individual cases".

JACUSTOMER-touq0kk8- :

I would like to be offered redundancy like many of my colleagues. Their argument is that I was only "supporting" my 2 colleagues in Colliers Wood store. However my duties covered all aspects of HR activities, just like they were involved in recruitment. I have also covered in another store in HR office during maternity leave.

JACUSTOMER-touq0kk8- :

I apologise for not replying earlier, however I was at work and didn't have access to my PC.

Ben Jones :

Hi, thanks for getting back to me. When a redundancy situation arises, there is a legal obligation on an employer to ensure that it applies a fair method of selection when deciding on who is to be made redundant. The general requirement is that a fair and objective method should be applied.

The first step is identifying the pool of employees from which the selection will be made. Often that could be a particular job, a department, even a whole office. The employer only has to show that its choice of pool was within the range of reasonable responses. This could often be linked to the needs of the business, for example a need to reduce a particular expense linked to a team, outsourcing certain work, etc.

The general rules state that when deciding on the choice of pool, the employer should start by considering two questions, which will help them identify which employees should be included:

  • Which particular kind of work is disappearing?
  • Which employees perform the particular kind of work which is disappearing?

There can often be an overlap of work done and disappearing and there is no easy way to establish whether all employees doing similar jobs should be made redundant or not. Another important point to note is that even though those employees doing similar work to you may have been made redundant, this could have bee done under a settlement agreement. This does not follow the usual rules of redundancy and it is a separate agreement where the employer agrees with the employee to terminate their employment – it is a voluntary arrangement and neither party can be forced to accept it. It does not stop you from approaching the employer and trying to arrange the same but they cannot be forced to so if that happens then you are left with one option only – to resign and make a claim for constructive dismissal.

This occurs when the following two elements are present:

  • Serious breach of contract by the employer; and
  • An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

Your claim for the breach is the employer’s failure to select you for redundancy when it should have but it is for you to prove to the tribunal that this was the case and that there was a breach by them and that you had to resign as a result. But before you are allowed to make a claim you will have to go through ACAS and mediate with the employer to try and reach a settlement so you may find that you settle with them without having to issue a claim.

Hope this clarifies your position?

Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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? I just need to know whether to close the question or not? Thanks

Expert:  Ben Jones replied 2 years ago.
Hello Joanne, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you
Customer: replied 2 years ago.

Hi Ben


 


I have read your reply a few days ago however when I tried to reply (via my phone) I have been asked to pay further £44.????


 


I have since learned that another of my colleagues has been offered a redundancy and will be leaving on 6 July. I have spoken to her (or tried to) about her alleged appeal at the beg of May, her reply to my question how it was going was: I can't discuss it!


 


I received a reply to my appeal informing me that it will not be heard as I have not provided enough evidence? My point is the company said one thing and now is doing totally the opposite, but doing it on the quiet, without drawing any attention to it, not wanting the larger audience of store's staff effected by the decision to remove HR functions from stores ever finding out that SOME of their colleagues are actually getting the redundancies, which they were told they would not. There is also the evidence that they are prevented from speaking about getting the redundancy so in fact their silence is BOUGHT.


 


It has been mentioned to me that there are law firms which could take this kind of case on a "no win no fee" basis. I certainly could not afford to pay for the lawyer to represent me on my £16 000 @ year salary, however I feel very strongly that what the company has done is extremely unfair, both to me and many of my colleagues.


 


What would be your advise how to best proceed with this?


 


Thank you for your advise and your patience so far


 


Kind regards


Joanne Cooper


 


 

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