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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 worked college years. I started my role

Resolved Question:

I have worked college years. I started my role on a year's maternity cover. The original job holder returned and we worked as a job share. She has never accepted me and refused to work with me. I have found this very stressful and it has affected my health. We then were told our post was up and a new post would be created and they only wanted one of us to apply. We entered a competitive interview situation and were tested IT skills . The test and interview contained elements that I do not do as my job share partner has not allowed me to do as she wanted to split the original job so she did not have to work with me. As I did not interview as well as her I am now facing redundancy. I have found out that senior mangers always knew about the issues with the job share and successive line mangers have done nothing to solve the situation. Do I have any legal come back. This is a very simplified account of events.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Do you believe this is not a genuine redundancy?

Customer:

it is a genuine redundancy situation as many colleagues are being made redundant. I feel the competitive interview situation between myself and my job share partner was unfair and biased. In September I went to my line manger and said the siuation between us was untenable and was making me ill. This eventually went to senior management level and no attempt was made to resolve the situation and ot was stated that the job should be split. This happened just before the redundancy was announced so was meaningless and a way of avoiding the situation. The union I had asked with the situation suggested external mediation but the college refused. Because of my job share partners refusal to work with me I have become deskilled over the years with IT and therefore was not in a position to be able to fight job.

Ben Jones :

Thank you. I am just traveling at the moment and cannot view your entire response. If you can give me until about mid morning I will be able to concentrate fully. I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

Customer:

Thank you. Have not used this system before so wondered what was happening. Hearing from you tomorrow is fine. Please let me know if you need further information. Thank you.

Ben Jones :

Sorry I did not mean mid morning, meant mid-evening, or more or less now

Ben Jones :

Whilst the employer is able to justify the redundancy situation in these circumstances, they must still ensure that a fair selection method has been applied. There are however no set rules and in fact an employment tribunal cannot substitute its own view of the employer’s. This means it has to accept the employer’s choice of selection and decide whether it was applied fairly.

If you are undertaking different tasks and you have a different set of skills that are used in your jobs then applying job-specific criteria that only apply to one of you or are clearly biased towards them then the selection could be deemed unfair. In that event a more generalised set of scoring and u biased criteria should have been used.

Whilst it is important that the employer knew of this and did not do anything about it, it is also a case that you should have brought it to their attention so if you have any details of that happening it can help you.

At this stage, if the redundancy has been confirmed, you are initially going to have to appeal with it directly with the employer. If the appeal is rejected and the redundancy stands all you can do then is to make a claim dismissal in the employment tribunal. Before you are able to do so you would be required to go through the free ACAS conciliation service where they will be used as a third party to try and negotiate a settlement between you and the employer in order to try and avoid tribunal. However, if that is not possible you would eventually be allowed to make a claim if you wanted to – this must be made within 3 months of termination of employment, ignoring any time in between during which you were undergoing the conciliation process.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

The redundancy will be confirmed on Thursday this week. My Union rep and I attended a meeting with senior management where we out our case as to why I should not be made redundant -new job is almost identical to the old one, selection process where I am disadvantaged over my colleague and the new job is 30 hours and as I have a disability I am only supposed to work my current hours of 18.5 ( I have been sent twice to see an Occupational Health Doctor.) The Principal of the college will decide on Thursday whether the redundancy notice is to stand. My Union rep thinks we have a case organisation contravening the Disability Act and is saying we will take them to a tribunal under anti discrimination law. However, this is dependent upon a judge finding that I am covered by the discrimination act of 2010. The Occupational Health doctor says I am medically but it is a legal not a medical decision so it would depend on an individual judge's decision. Leading up to where I am now It is obvious that there is a catalogue of mismanagement and I believe bias and unfairness in the way I have been treated which has led me to query whether I have a case or constructive dismissal. In October I was put through a disciplinary hearing the week I buried my mother. They would not delay the hearing. It was found there was no case to answer but I found the whole situation immensely stressful considering the timing and I received no apology or support from management. I subsequently went off sick with stress month. I returned to work to face the interview panel who had put me through the disciplinary process. Once I had been cleared of any wrong doing at the end of the disciplinary process they took the opportunity to talk about college procedures I had supposedly not been following around other issues even though I was following exactly the same procedures as my colleagues. I could go on.... Therefore, I felt very intimidated during my interview and did not perform well. 7 years I have worked college I have had reviews that are very positive and there have been no issues with my work. I am left wondering at the transparency and fairness of the whole process when the post could have remained as a job share, all be it on slightly reduced hours and mediation could have helped the working relationship between my colleague and myself. Thank you

Ben Jones :

The disability aspect will be covered under the Equality Act 2010. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:



  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:



  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours , assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.


If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. Unless the dismissal was because of your disability then you may not necessarily be able to claim unfair dismissal and you would need to concentrate on the selection process, but the disability discrimination claim is a separate one which you could make at the same time as a n unfair dismissal one if you wanted to.

Does this clarify things a bit more ?


Customer:

Thank you response. Please could you confirm whether I would ask my Union representative to refer the disability appeal to the ATL solicitors and then make the case dismissal through ACAS. Originally he said I did not have a case dismissal but that was before he heard the feedback from my interview and heard the statements that they had known all along that there were major issues with the job share. Am not sure whether the two processes are separate or tied together.

Ben Jones :

the union can certainly help you with making the claims but it would depend on whether they see this as having reasonable prospects of success or not. The unfair dismissal and disability discrimination claims an be made at the same time and under the same claim and you can use ACAS to help you negotiate on both of them before you decide on wyether to make a claim

Expert:  Ben Jones replied 2 years ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  Ben Jones replied 2 years ago.
Can you please clarify the reason negative rating, I did spend quite some time discussing your situation in a lot of detail, i would have been happy to clarify anything further if you had more queries
Customer: replied 2 years ago.

I thought I had given you an 'excellent rating'. Please tell me how I can amend this. I was very happy with the responses and do not understand how this has happened. The reason I am in the situation I am in at work is because like to deal with real people face to face unlike my colleague who is happy to dispense advice to students via a website prescription. Computers are not my forte and I have obviously inadvertently scored you the opposite end of the scale to my intention. Please let me know what to do to ensure you are not disadvantaged by whatever mistake I made.

Expert:  Ben Jones replied 2 years ago.
, no problem at all and thank you . We can make the amendment at our end, I just needed to get the clarification from you. If you need further advice on this or other topics please do not hesitate to get back to me, you can start your questions with ' Jones. Many thanks
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