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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience:  15 years experience of advising on employment law matters
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I am just about to go through a redundancy process

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Hello, I am just about to go through a redundancy process and I would like some help please. Although the package seems to be reasonable, I have concerns about how the process has been started. I have worked at the Company for 2 years and 11 months. I am the Director of Finance & Administration and earn £91,000 with a very good pension package of 16% employer contribution for a 7% employee contribution. I my time there I have had very positive appraisals - the last being February 2015 at which we agreed a training package to ensure that my knowledge of the business was refreshed. This package finished two weeks ago. In April 2015, I became aware of a complaint about me by my ex Personal Assistant to my boss, the CEO. He never told me about this - I found a document on the internal IT system accidentally whilst I was checking the security of the system in my guise as Company IT controller. This document contained defamatory comments about my work performance by the ex-PA. The CEO showed me another version of this document in which the defamatory comments were removed but, despite my indirect questioning (I never told him I had the document), he never revealed the unfounded and unfair contents of the interview. At this stage I began to fell a rat. I had a sneaking suspicion that the CEO was beginning to make a case against me for reasons unknown to use in the future. I should add, that at this stage, the CEO had also proffered his retirement notice to the Company and the new CEO joined the Company on 1st June. With my suspicions aroused, I checked the source of the document again and found another document, clearly written by the outgoing CEO (but not signed) which contained plans of how to get rid of me - even suggesting that they might adopt an aggressive stance to get rid of me if I did not go quietly. This document was dated 25th June 2015. The new CEO has still not technically taken over his job - this happens on 1st August although two days ago, he decided to initiate redundancy proceedings with me even though he and I have not yet worked together. I have questioned his motives and suggested that he can hardly be in a position to do this unless he fully understands my skills. The reality is, he has not himself got certain skills and now presumably feels vulnerable and thus believes this to be a good enough reason that the situation has changed and required a different level of expertise in my job (which is effectively as his deputy). He stated that I could apply for the new position (which looks suspiciously like the same role as I have been doing albeit under a new title) but the position is likely to need skills (accountancy qualification) which I do not have. I have a document that proves that they wanted more generalist skills when I joined only a few years ago. Indeed, this document proves that much thought had been put into my employment since my predecessor had only lasted 18 months - despite having specialist skills. I was also reassured by one of the Board members at the Company only in November 2014 that although he did not think I should apply for the CEO role, he believed I had a future at the Company in the Director of Finance position. Do I have a case here for Constructive Dismissal? Can I use the documents which I obtained on the Company's internal system (which were not secured) to my advantage at a Tribunal? The Company senses that I know something and are threatening to remove me from the workplace sooner than I would wish and I would like to know my options here since I feel that I have been treated unfairly - albeit, I am happy to go so long as I get paid a substantial package for the poor treatment. I will be 56 when I get dumped back on the job market and I have many financial responsibilities to attend to - this has come at a very unwelcome time for me and I do feel aggrieved that this process has been engineered behind my back and presented as a fait accompli to the new CEO. What can I do now please?

Please also note that I only was aware of a monthly fee after I paid my £38 fee. I only want advice on this issue please - in full detail - I do not want a monthly membership to your service.

Submitted: 1 year ago.
Category: Employment Law
Expert:  taratill replied 1 year ago.
Hello my name is ***** ***** I am happy to help you today. To go back to basics has the need for a person to perform the role you are employed to do ceased or diminished? In other words what will happen to your work in the event you are made redundant?
Customer: replied 1 year ago.

They are re-branding my role but it is essentially the same job. The fundamental problem is that they had a problem employing the CEO and the one they wanted rejected the job. The one that came second in the race does not have certain skills for the job and thus the Company believe he needs more support form his number 2 than I can give him given my skillset. Thus, the problem has been created by the employment of the new CEO. Hence the timing has been driven by this situation.

Expert:  taratill replied 1 year ago.
So in effect the CEO is being given your rebranded job but the job itself is essentially the same?
Customer: replied 1 year ago.

No. The CEO is taking over from the outgoing CEO. They want to recruit a new person into my role, which will be called something different, but it is fundamentally the same role albeit with a slightly different skillset and background experience which will better help the new CEO settle in to the role.

Expert:  taratill replied 1 year ago.
But could you do the role with ease i.e. without significant training?
Customer: replied 1 year ago.

I was doing it with ease and was also given a degree of training to do the role even better - the last of which recently ended only two weeks ago (a course at the Cass Business School). I think they now want someone with more in depth finance expertise (problem an investment banker or strategic finance accountant type) to provide more focussed advice to the new CEO.

Expert:  taratill replied 1 year ago.
So would you struggle to give this focussed advice?
Customer: replied 1 year ago.

I suspect I would given that I have no deep finance experience. The key is that this has been driven by the appointment of a new CEO which the Company had full control over and I have been made to pay the penalty.

By the way, is there any way we could have this conversation by a chat style box please? I have to keep opening the response and then get this prompt for a monthly payment service which I don;t want or need!

Expert:  taratill replied 1 year ago.
I'm sorry but I don't know how to change this to a chat format.
The problem is that the ceo if he has control over decisions the company makes, has the right to change roles to suit the needs of the business.
If it suits the needs of the business to change the role to one with a 'deeper financial leaning' then this potentially does change the role enough to create a redundancy situation as the Tribunal generally recognises the need of a business to change focus from time to time.
If it is your position is that this is a case of keeping jobs for the boys or for friends then you can appeal against the decision and engage ACAS pre-claim conciliation (www.acas.org.uk) and raise a claim in the employment tribunal. The claim would be for unfair dismissal rather than constructive dismissal.
Your better argument might be that you could do this new role with minimal training and it would amount to a suitable alternative employment and you should be offered it.
I would suggest you raise a grievance of that nature and say if you are dismissed you will claim unfair dismissal. If nothing else this might lead to a better negotiated settlement.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 1 year ago.

I believe that the CEO has not been in the role long enough to make a fully informed decision on this matter. He has only just joined (7 weeks) and is coming to the end of his handover period (8 weeks). He is still technically the CEO designate - not the full CEO. It seems therefore that he is reacting to advice from others - primarily the Board members. I suppose this makes no difference and I take your point about stating that I could do the job with more training but I suspect their quick response to that is that they now need someone who has formal accountancy qualifications, which I do not have, and thus no amount of training will prepare me for the role. Unless I have a case against them for an unfair process or constructive dismissal, I suspect I have no leg to stand on. Which seems incredibly unfair and unacceptable in my view but you seem to offer no other hope?

Expert:  taratill replied 1 year ago.
I am really sympathetic to your situation. The problem is that the length of time that the CEO has been in the role makes no difference to the position.
I would suggest you raise the grievance though, not least because this may lead to an increased offer/ settlement agreement.
I have sadly been to tribunal with individuals in similar situations, whilst the Employment Judge has been sympathetic the law does not protect you very well in this position.
If you have any further questions please do ask. If I have answered your question please take the time to rate my answer as I am not otherwise credited for my time. Thank you and all the best.
Expert:  taratill replied 1 year ago.
may I ask why you have rated my answer poor? I hope it is not because I have not given the answer you wanted to receive? It is unfair to blame me if you are disappointed with the legal position.
If you have any specific questions you would like to ask to clarify any points please let me know.
Customer: replied 1 year ago.

I have responded to your question. Do I take it that the advice has now been terminated?

Expert:  taratill replied 1 year ago.
Hi I can't see a response? Were there specific questions you wanted to ask? I am happy to continue if I can continue to help?
Customer: replied 1 year ago.

It must have dropped off the system. I responded that you had not asked certain of my original questions which is why I had given you a poor assessment. I note from your response that my situation is not great and that it seems the Company and the CEO hold all the cards. I do not think that going down the grievance line makes sense since they will clearly state that the skillset that they now need would require significant re-training (accountant or investment specialist) which would be inappropriate and thus all I would do is waste time and potentially spoil my chances of a good package.

Thus, noting that my situation is being controlled by the Company, I just need responses to the following questions please:

a. Am I able to use the documents I found on the Company's internal system to prove that this was a pre-planned exercise? If I can, would they be any help anyway?

b. They are offering me £67,000 payment based on 3 year's service and a £91,000 salary. Is this good?

c. How long should I get to look for other jobs - i.e how long should my gardening leave period be? Is it the length of my notice period (6 months)? If so, can I expect full pay during that time whilst I am effectively at home looking for another role?

d. If I find a job that starts in the middle of my gardening leave, do I have the right to draw both salaries from the new job and the old one which I have been made redundant from?

e. What else can I expect from the redundancy package? For example, I will be losing a significant pension scheme which will not be replicated elsewhere...can I claim for compensation? Or is this included in the lump sum?

f. What can I do if I am not happy with the final settlement?

g. Are there any issues I should be aware of before I sign any settlement? For example, if they want me to sign a gagging order?

Many thanks.

Expert:  taratill replied 1 year ago.
a) yes you can, if you think that these demonstrate that they wanted to get rid of you for another reason, (i.e not redudnancy) then this will support an argument that this is not a genuine redundancy situation.
b) I think this is good. On the basis of the this offer it is probably not worth taking them to tribunal any way . £78,335 is the current maximum unfair dismissal award and any award is based on economic loss. If you find a new job quickly your compensation would therefore be considerably less than you would receive in compensation (this is in the event you were successful in a claim which is a moot point).
c)Whether you are entitled to garden leave depends on your employment contract. yOur employer should not refuse time off to look for other work.
d) it is unusual to be put on garden leave in these circumstances. the employer in a redundancy situation would normally pay by way of a settlement agreement. If they are putting you on garden leave then it is normally a requirement that you are available to work. You will not be if you are working in another job so will probably not receive double compensation.
e)You need to ask your employer if it is included in the sum, it probably is on the basis that the compensatory award is capped as I stated in my answer to question b).
f. You can ask for more but bear in mind that in unfair dismissal cases compensation is low. Big figures are only acheivable in discrimination cases which is not the case here.
g)If you are offered a settlement agreement it will need to be signed by a solicitor at the employers expense they will be able to advise you on issues specific to that agreement.
I would be grateful if you would now change the rating you originally gave as I have spent considerable time answering your questions and am not otherwise compensated for my time.
Many thanks.
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience: 15 years experience of advising on employment law matters
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