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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48176
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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BenI have sat in with my CEO and he has told me that

Resolved Question:

Ben I have sat in with my CEO and he has told me that it is nothing personal but they are re-structuring our team to bring in someone more senior. Basically that I joined as a junior PM and will be seen to be one still although I have actually moved up in the team and would consider myself middle-weight. His words were, my face doesn't fit the bill and they are adopting a new approach. He mentioned that we can go down the road of making the department redundant but said it will be me (off the record). I said that I didn't feel that a months tax free was a true reflection of my services which he said that's all they're going to offer. What do you think this sounds like? Are they able to re-structure with this reason? I took the liberty of recording the conversation as well!

I feel like my hand is being forced. I want to leave now as I feel it pointless being here but actually feel stuck as to what I can do?

I checked my contract and it says that I can't work company during Garden Leave which is a months notice. That's all

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

again, from what you have said I am not confident that this is going to be a genuine redundancy because they have already selected you as the person they want to get rid of and will attempt to manoeuver the restructure in such a way that they end up making you redundant. In a genuine redundancy the employer would not necessarily know who will be made redundant, they could identify certain jobs that need to be removed but if there are more than one person doing them they would need to adopt a fair and objective way of selecting those to be made redundant, rather than having someone in mind. So from that point of view the potential redundancy is going to be unfair and you could actually use the recorded evidence in your defence.

At this stage you can either leave but try to negotiate a higher settlement, using the recording as evidence that what they were proposing to do was underhand and making it clear that you will take the matter further. Or you could remain working there and let them go through the ‘redundancy’ then once your employment is terminated, or in the lead up, again try to negotiate and if that fails – you can always use ACAS afterwards with their free conciliation service to try and negotiate a settlement before considering whether to go to a tribunal over this.

Customer:

Ben, Do I run the risk of getting into trouble by recording the conversation in his office?

Customer:

If I opted to stay and go through the process and then I still get made redundant will it prove this?

Customer:

that it is indeed unfair dismissal

Ben Jones :

it is not generally unlawful to record such conversations, unless you had a specific restriction in your contract but that is unlikely. Whether a tribunal accepts this as evidence is another matter and that would depend on the judge on the day. I cannot say that this will 100% prove it was unfair dismissal of course but it does provide good evidence that the process was likely a fix and that the outcome was predetermined, which would certainly suggest an unfair dismissal

Customer:

I hope to settle without the hassle of the tribunal but if it doesn't do I have a strong case? Or can I ask them letter of termination now if we can't agree to push through a hearing?

Ben Jones :

you have a reasonable case, I just can't say how strong because it is employer to defend this and I have no idea what they may come up with, so this is still a bit of an unknown but from what you have said there are certainly elements of unfair dismissal. You are free to ask them now but cannot force them to do so, if they wanted to they could go through the full redundancy process and terminate you at the end of it, or if you wanted to you could leave now but you would be resigning rather than being made redundant and won't get redundancy, unless you agree on a payout now

Customer:

but if they go through the process and make me redundant and the fact that they have pulled me in to say it's likely to be me prove it?

Ben Jones :

as mentioned in an unfair dismissal claim it is employer to show there was a fair dismissal, so even though you have evidence to suggest it was unfair, it still depends on what evidence they provide and without knowing whether they could in some way show that the redundancy was fair it is impossible to say that the recordings will 100% prove your case

Customer:

I have a strong performance record that reflects my work last year and also the fact that they have brought in new PM's. Does that not help?

Ben Jones :

yes it does but you will never find something that guarantees you a win, the whole claims process is a combination of factors which are taken into account so even strong cases can sometimes fail based on other matters, such as procedural issues, questionable evidence or a plausible defence by the other side - hence there is always a risk with claiming

Customer:

I appreciate that. There does seem to be a lot of factors though along with my other directors who are normally involved with such processes had no idea also

Customer:

I'm sitting in with my other director who is basically second in charge of the company because my CEO told me to arrange the settlement, but not one I agree with

Customer:

I think he is trying to call my bluff

Ben Jones :

there will often be a disparity between what an employer is willing to offer and the employee is willing to accept and the negotiations process can sometimes be a bit of a poker game but the closer you get to actually taking this further, such as engaging ACAS after termination or even making a claim the more they will be prompted to reconsider their position. It is just that you can't force them to agree to what you demand at present - it is all down to tactics and negotiations

Customer:

Sure. Ok thanks again Ben

Ben Jones :

you are most welcome

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