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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46146
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi. I work as the BD person for a technology company that employs

Resolved Question:

Hi. I work as the BD person for a technology company that employs around 35 people. I am the European BD Manager while I have a counterpart in the US who is a self-employed consultant who does BD work for the company. When I went in for my appraisal early January (I had just returned from maternity leave end of July last year), I was told by my CEO that I would not be having an appraisal and instead he handed me a letter which said my job was being threatened with redundancy. The company has had 50% CAGR over the past few years so is doing relatively well but because it has grown rapidly, the costs have also increased. The board has given the CEO a clear mandate to break even this year and as part of the cost cutting exercise, he is considering making my job redundant. His argument is that there is not enough work for two full time BD people (myself and my US counterpart, who is not an employee) and since he believes we need a presence in the US, he is proposing to redistribute my duties internally but keep the consultant. I believe this would be unfair dismissal as he would have to lay off any self-employed consultants before making an employee redundant. Some of my work has also been redistributed to him. But my CEO says he cannot afford to lose the US BD consultant as he has access to valuable contacts. I have been passing on all my US leads to said consultant, but this hasn't been reciprocated. Also, I never said that I couldn't travel (I have a young family). I am currently 17 weeks pregnant (I was going to tell him about the pregnancy at the Appraisal, so to be fair he didn't know that I was pregnant when he gave me the letter. He has offered me a choice of either redundancy or a 3 day working week (instead of full time). I have said that I am not prepared to take any reduction in work time and that as I am an employee, I am entitled to be allocated enough work with clear objectives and targets as he has admitted that there is a need for more than one BD person for the company (but not for two). Am I right? Will I have a case if I decide to take this to the employment tribunal (not a route I want to go down)?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How log have you worked there for?

Customer:

Hi. 3 years

Ben Jones :

So would the other BD continue to work as self employed?

Customer:

yes

Ben Jones :

ok let me get my response ready please

Customer:

Sure

Ben Jones :

The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).



The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:



  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

  • There is less work of a particular kind, but the same number of employees are required overall.


 


So as long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied. What is important to note is that the wording only refers to ‘reduced requirement for employees’. It means that if the employer has decided that it no longer needs employees to do a specific job and would rather get freelancers or agency workers to do the job instead, this can amount to redundancy where the employee is placed at risk of redundancy. You would be entitled to receive offers of any suitable alternative employment that may exist at the time (they have offered you part time work) but if you do not think that is suitable then you can reject it and opt for redundancy instead.

Customer:

I'm reading it now

Ben Jones :

Before you try and exit chat can you please let me know if your original query has been answered or if you need me to clarify anything else in relation to it before I close this at my end?

Customer:



Customer:

Hi. Can my employer get freelancers or agency workers to do the job instead even if they (in this case the US BD consultant) is paid far more than me as an employee? It doesn't make sense if it's a cost-cutting exercise. I tried to leave a rating for you but I can't seem able to as it says that 'Your expert has not finished answering'. Many thanks for your help.

Ben Jones :

Hi, the reasons for replacing employees do not have to be cost-related. The legal definition simply states that there has to be a reduced requirement for employees to do work of a particular kind. So if the employer believes that the need for employees to do a job is reduced nd they want to get a freelancer to do it, whatever the reasons, then they can satisfy the definition of redundancy

Ben Jones :

Did you get my last response above, just checking there are no issues with receiving my replies, thanks

Customer:

Hi - thanks. Yes, I did get your replies. And now I see that the system allows me to rate your reply. I was just double checking because I read this comment from employment solicitor Graham Darwood of City firm LLG Law that should a company threaten you directly with redundancy unless you take a pay cut, it won't be acting lawfully since "an employer either makes a post redundant or not". "This could also raise other issues such as constructive dismissal and, possibly, discrimination."

Ben Jones :

but you are not being given a pay cut, your hour are being reduced, the two are different.

Ben Jones :

Yes a reduction of hours will result in a pay cut, but it is not the same as saying, you are getting pay cut without there being something that has prompted it, such as a change in hours

Ben Jones :

Also as mentioned a redundancy will exist if the employer meets the legal definition of redundancy as stated above - it is not necessary for a post to disappear for there to be a redundancy situation

Customer:

Thanks for all your input

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46146
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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