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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50165
Experience:  Qualified Employment Solicitor
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I would like to know if my case is considered an unfair dismissal. • I

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I would like to know if my case is considered an unfair dismissal.
• I joined the company on 3 April 2014 as the field marketing manager for the UK & Ireland.
• In April 2015, the company extended my duty to cover Benelux, Central Europe, Middle East and South Africa. The role still includes delivery key programmes and target for the UK.
o The company removed my direct report (marketing coordinator) for the UKI. The verbal reason was that they want to keep the organisational structure flat and stated that to help me take on the new countries, my direct report need to be the primary contact for the UK&I team.
o There is no official documentation except a Word document outlining the scope to facilitate a verbal discussion with the managers.
o I was still involved in delivering key programmes for the UK during this period of time.
I was notified by the company on 9 Dec that my job will be gone because the company is planning to hire a Dutch speaking person in Amsterdam to support the Benelux region, and stated that other regions will not need my support.
When I asked the company if I will be resuming my full time UKI duty as contracted, the answer is no because they want a junior person to look after the UK.
Customer: replied 2 years ago.
I still hold a contract that outlines my duty is for but not limited to the UK&I.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. can you tell me are you being made redundant.or are you company just dismissing you.
Customer: replied 2 years ago.
The company has not stated if it's a redundancy or dismissal. I presume yesterday is the first verbal communications and the kick of the consultation process? Hence I would like to get advice with regard to where I stand.I emailed the manager and HR representative back to summarise my understanding that it's a redundancy but there is no confirmation. This is what I wrote to the company:
Memo of Today's Discussion
Yuchuan Liu Add to contacts 12/9/2015 Keep this message at the top of your inbox
To: ***** ***** Beth Ward Cc: Liu yuchuan***@******.***Hi Karen and Beth,I would like to summarise today's meeting. Please correct me if there is any misunderstanding.
I will be made redundant as the company plans to hire a local marketing person to support Benelux and that the future structure will not require my support for Middle East and Africa.
I will not be able to resume my duty for the UK&I as contracted.
I have not been considered by the company for any current, open marketing positions. If I wish to apply, I can check our job site and go through the standard protocol.
I will be considered for potential future openings and other suitable internal transfers.
Exact timescale of this impact is yet to be determined.
​Thank you!​---
Customer: replied 2 years ago.
I would also be interested in knowing if this is categorised as a redundancy, how does the case stack up? Can the company still hire or have a UKI marketing manager (my position)? Or give my role to a junior (who used to report to me) that is less paid (£25k - £35k less)?
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Many thanks for your patience. The main issue here is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). However, there is no evidence to suggest the is any discrimination at play here.If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice. If you were not paid your notice period when you were due one, that would amount to wrongful dismissal (which is different to unfair dismissal) and you could make a claim in an employment tribunal to recover the pay for the notice period that you should have been given. There is a 3-month time limit from the date of dismissal to submit the claim.So it does not matter whether this is a redundancy or any other dismissal, it does not affect your rights. You will not be entitled to a redundancy payment anyway as you need 2 years service for that. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Hi Ben, I am very sorry to have provide inaccurate information to begin. I was actually employed from 8 April 2013. Sorry, I made a typo due to the distress. So I have been with the company for over two years and 9 months. Would you please re-evaluate my case?I would also like to let you know that I have received response from HR to my memo (see below) and have few dispute to some of the points:---Hi Yu-Chuan,
I’m writing to respond to your email and confirm the content of the announcement consultation meeting held yesterday.As we discussed, during 2016 planning we have reviewed the markets where we require a field marketing presence due to projected sales and strategy for each market. After carefully reviewing the requirement for employees to do the work that you undertake, namely a role operating from the UK using the English language as the only language to communicate, the company has come to the provisional view that it no longer requires such a role and that it could be abolished. The company now requires an employee in field marketing who is fluent in Dutch and located in the Netherlands - which is one of our key markets going into 2016.Whether or not you would be willing to relocate, you do not speak Dutch and, therefore, while we will consult with you (see process below) your post is at risk of redundancy.Consultation processAs discussed, we will have a series of meetings with you to consult about the proposal above.These meetings will be an opportunity for us to clarify the business rationale for this proposal and for you to suggest any alternative proposal that may achieve the same result and/or may avoid the need for redundancy.The meetings will also be an opportunity to discuss the new post and the duties involved and any alternatives to the proposal itself.It is anticipated that this consultation process will last for about 2 weeks.As discussed, you may work as normal during the consultation period.With regards ***** ***** positions within the company, a list of all current openings is posted on our career site. Please review them and contact me if you have questions about or are interested in any of the positions.Invitation to consultation meetingKaren will set up an invitation for a follow up meeting the week of December 14. Karen will be conducting the meeting and I will join and take notes.The company would like to emphasize that nothing stated in the announcement today or this letter constitutes notice of termination of your employment. For the avoidance of doubt, we did not say to you that you will be made redundant i.e. dismissed. No decision has been made about that. We did inform you that if the proposal is implemented, your role would be redundant. All of your terms and conditions of employment remain unaffected during the period of consultation.We also did not make any representations about the Field Marketing role in the UK market, or say you would not be able assume it. We did say that it did not appear to align with your career aspirations but, again, that is a matter we can discuss during the consultation.Please feel free to call me if you have any questions about the contents of this letter.---- End of Letter --And I have a few questions / dispute with the content and again the redundancy selection.1) The company made it sound my role is for Benelux. However the contract I hold defines the role as "duty for, without limitation, for UK&Ireland." Even though my role has expanded to cover the additional regions, over 70% of my time this year is still focused on the UK. I do not understand why one region is singled out. Plus, my contract was never revised.
3) In my contract there is a term that says the "you will not be assigned to duties or be required to perform services which you cannot reasonably perform or which are outside the range of your normal skills and experience." The company know that I do not speak Dutch or any other European language when I was hired. And they assigned me to support the Benelux region knowing that, and I a local freelancer that helps me with any translation if needed. So why now is language a problem?Please let me know if I shall enclosed a copy of my employment contract. Thank you!
Hello, thanks for clarifying and no problem on the initial error. So you will have protection against unfair dismissal in this situation, from what the employer has said you are facing a redundancy situation because your role is being made surplus to requirements and your duties are being redistributed amongst existing staff or the needs of parts of the job are changing so that your skills are not required or compatible. This in itself can be a fair reason for redundancy because the official definition of that is when there is a reduced requirement for employees to undertake a specific job. Your original contract may state you are only responsible for UK & ROI but this has changed since so the contract would not necessarily be current. The changes would not have had to be done in writing to be legally effective, it would be implied that they had been implemented. So do not just refer to the written contract, it is the general arrangement and what has actually been agreed that will really matter. So it looks here like they have decided the new role you do has become surplus to requirement and this can amount to a redundancy. They now have a duty to consult with you and offer you any suitable alternative positions that may exist. If they have a newly introduced language requirement for certain regions they do not have to offer these to you but I would say that the UK & ROI positions should be something you are considered for, even if there would be no guarantee that you will get it. So on the assumption that they offer you a chance to apply for that position, it may be difficult to claim unfair dismissal on the rest. Hope this clarifies?
Customer: replied 2 years ago.
Thank you very much, Ben. The company has not offered me to re-apply for the position. However, they are saying that UKI position is now a more junior role. Do you think I can or should push the company to open that position for application (which is currently performed by the coordinator)?
Customer: replied 2 years ago.
I got your point about the legitimacy of the role change without written document. However, I felt that I was put in a situation that I couldn't refuse. My role expanded in April 2015. There is however context that the person who looked after Benelux, Central Europe, and South Africa was planning to go on maternity leave in August 2015. Under the circumstances, I would have accepted the additional responsibility. Now that element of my role is compartmentalized and became the reason of redundancy.Can I raise a grievance case at the same time during the consultation process?
You could indeed raise a grievance whilst going through a consultation process. I would also push to be included n the UKI position as the fact they think it's more junior should not preclude you from applying. Hope this clarifies?
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