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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46789
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I live in the UK and I am facing a large scale redundancy

Customer Question

Hi. I live in the UK and I am facing a large scale redundancy situation.
First of all, I must say that I am a non-UK national, indeed I am Italian.
Group consultations are still going on but I have been already shortlisted from a selection pool and had my first individual consultation.
I want to challange the employer selection criteria since it is discriminatory and unfair.
My point is that I have been assessed on parameteres which are not part of my role and are out my control.
One of these parameteres is defined as "flexiblity" and it is measured on the employee secondment over three weeks in the last 24 months. Since secondments are offered by the employer and not chosen by the employees, I find this discriminatory and unfair. In my case I have been on a secondment for 2 weeks. Can the employer use this parameter?
Secondly, in the deparment where redundancies are made, there is 16% population of non-British nationals. Out of the entire population, the selection pool (people at risk) had a 62% population of non-British nationals. This percentage raises to 100% for the people provisionally selected for redundancy like myself. Could this be a case of nationality discrimination?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for?

Customer: replied 11 months ago.
Just over 5 years.
Customer: replied 11 months ago.
I work as stress engineer for GKN Aerospace. I am also a Chartered Engineer with the Institution of Mechanical Engineers.
Redundancies were announced last 7 April and going to affect 30 people from the Engineering Reporting Unit because of the drop in work demand. My sub group was the "Analysis" one and had 26 people at risk. Others were excluded beforehand. 26 bacame 25 and out of these only 9 were going to be made redundant. I was selected because of low score which I think was unfair. I was awared a lower score than people with much less experience and knolwedge than myself. Young graduates with a few years of experience were saved whereas a professional engineer like myself with 9 year overall work experience was chosen. Because of this I think I was selected becuase my boss does not like me.
Expert:  Ben Jones replied 11 months ago.

Thank you and whilst you have the percentages of foreign nationals at risk or selected for redundancy, is there any evidence that nationality was the reason for selection rather than the other selection criteria used?

Customer: replied 11 months ago.
Nationality is not stated in the slection criteria, if that's what you're asking. However, being several parameters of the selection criteria quite subjective, the disproportion between the overall popultation of non-British and the all non-British selection seems to suggest otherwise.
Expert:  Ben Jones replied 11 months ago.

Ok thank you. What selection criteria an employer chooses is effectively down to them. No one can tell an employer what to use and if it is challenged in tribunal, it cannot substitute its own vie for that of the employer. So in effect a tribunal has to accept the criteria chosen by the employer and determine if they are reasonable and fair.

As far as selection criteria re concerned, the employer can apply just about anything they want. Of course clearly discriminatory criteria like nationality, age, race, etc will be hard to justify, but in reality it is possible to engineer a redundancy by applying criteria which end up affecting specific employees more negatively than others. It is then about trying to establish the link between this and the employer’s deliberate attempt to try and remove certain employees. Unfortunately that is not always easy. Whilst you may wish to point out that the majority of affected employee are of foreign nationality, you have to agree that it could also be down to coincidence and it is not an automatic guarantee that it is the reason behind the employer’s decision.

Legally, in order to be reasonable, the redundancy selection criteria should, as far as possible, be both objective and capable of independent verification. This means that the criteria should be measurable, rather than just being based on personal opinion.

Selection on purely subjective grounds is likely to be unfair. This is to ensure that an employee is not selected by a manager due to personal animosity, or for an automatically unfair or discriminatory reason. Saying that, there have been a few cases in which subjective selection criteria have been held to be acceptable, although subjective criteria must still be applied in an objective manner.

So I cannot in any way guarantee that the criteria used here will be found to be unfair – only a tribunal can decide that and one judge on one day could have a very different opinion to another on a different day. I would say that for now you need to try and find more evidence which may suggest that nationality may have been the genuine reason behind their procedure, for example any discussions or hints the employer may have had in the past to suggest that they were considering removing people of foreign nationalities.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have to challenge this should the employer still proceed with making you redundant, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46789
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 11 months ago.
Thank you. I see what you mean about nationalities and unfortunately I do not have further evidence of discrimination.However, in the scoring matrix I know of a colleague of mine who scored higher than me on a parameter which he does not fit.
Let me explain the parameter. Flexibility: measure of flexibility in approach to work, tasks, travel and change.
"Evidence will be considered from the previous 18-month period only (defined as 01/01/2015 - 01/04/2016)
Evidenced through examples of flexible approach when requested, effective movement between programmes and / or types of work, completion of offsite assignments."
Now there are three options for this parameter with score 0, 40 or 60 respectively. Here are the definitions:
"In the last 18 months does not accept change, is unwilling to be flexible in either tasks performed or approach to new ideas. No evidence of flexibility to travel or deploy to other areas.
Scores = 0
"In the last 18 months accepts some change and shows some willingness to work in other areas some of the time. Evidence of flexibility to travel or work in other locations (< 3 weeks)
Scores = 40"
"In the last 18 months readily and positively accepts change, is flexible to work in other areas when asked.
Evidence of flexibility to travel or work offsite (> 3 weeks) and has demonstrated interest in or completed offsite deployments.
Scores = 60"
Now this colleague of mine (I have a copy of his scoring matrix) has scored 60 under flexiblity despite the fact that he hasn't changed project neither role, and he has not been on a secondment of what so ever.
I have scored 40, but I had a two-week secondment and I have moved to another project.
I think this is an unfair score since the scoring system has not been applied consistently among the affected employees.Another parameter I challenge is this: Performance & Capability. It is defined as:
"Delivers below required performance / unsatisfactory
Score = 10
see definition below"
"Delivers in line with required performance / satisfactory
Score = 40
see definition below"
"Delivers above required performance / exceeds
Score = 80
see definition below"
Definitions:
"Below Requirements is defined as an employee who has received a PDP overall rating of “Below expectations” for 2015 OR if the employee has exhibited a majority of the stated criteria. The criteria for the “Below requirements” rating are defined as follows:
Not proactively managing own PDP process;
No or limited engagement within CI activities;
Takes limited or no responsibility for tasks within remit or own role;
Regularly does not deliver right first time on time;
Does not consistently demonstrate behaviours in line with applicable success factors."
"In Line with Requirements is defined as an employee who has received a PDP overall rating of “Meets expectations” for 2015 or higher AND has exhibited a majority of the stated criteria. The criteria for the “In Line with Requirements” rating are defined as follows:
Effectively managing own development and PDP;
Regularly engaging in CI activities;
Takes responsibility for tasks within remit of own role;
Consistently delivers on time and right first time;
Consistently demonstrates behaviours in line with applicable success factors."
"Above requirements is defined as an employee who has received a PDP overall rating of “Exceeds expectations” for 2015 and has exhibited 2 or more of the stated criteria; OR, an employee who has received a PDP overall rating of “Meets expectations” for 2015 and has exhibited 4 or more of the stated criteria. The criteria for the “Above requirements” rating are defined as follows:
Proactively managing own development and PDP process;
Leading or promoting CI activities;
Taking ownership over tasks and proactively managing within remit of own role;
Always delivering right first time on time and actively managing expectations of others;
Demonstrates behaviours over and above level shown in applicable success factors."The scorer gave me 10 here, the minimum.
Now I must say that my PDP (Personal Development Plan) meets expectations and the employer (well the scorer) has no evidence of what above. I have always demonstrated attitude to be scored 40. I think this criterion is too subjective anyway this it is hard to measure.
Can I challenge it in a tribunal?What should I do next if the employer confirms the score or raises a bit but I still do not make because of his discriminatory criteria and scoring?
Expert:  Ben Jones replied 11 months ago.

Whilst the criteria adopted by the employer are largely left to them, they must still be applied consistently and fairly. So if you have evidence that there has been no consistent application it is possible to challenge them at tribunal. Initially however this needs to be challenged internally – via the consultation meetings, if any are left and by launching a formal appeal once the redundancy decision has been communicated.

If the redundancy is confirmed and the employment I terminated the only option then is an unfair dismissal claim in the employment tribunal.

A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

Customer: replied 11 months ago.
Thank you. I hope to find another job soon. I have rated you. Cheers
Expert:  Ben Jones replied 11 months ago.

Many thanks best of luck

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