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Ed Turner
Ed Turner,
Category: Employment Law
Satisfied Customers: 1241
Experience:  Director and Consultant Solicitor (Self-Employed) at Ed Turner LLB Limited
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Looking for advice please. I’m at risk of redundancy and

Customer Question

Hi looking for advice please. I’m at risk of redundancy and going into my second consultation next Tuesday. The company are selecting people through a points scoring which I strongly disagree with. The scoring is in two parts. 1st part is based on 2019 performance review. 2nd part is based on skills and competence. 2nd part I achieved a score of 5 out of ten by project director whom has no idea how I perform in my role and did not consult with my project leader nor line manager for advice. The 2019 performance review was conducted with my line manager earlier this year, and we agreed a score of valued. My written appraisal reflects this value. Two weeks later I was sent a text to say sorry but I’ve been ‘exec calibrated’ down to a ‘developing’. I’m 52 years old I have brought through training a design graduate and design coordinator and my input has contributed to a successful project in terms of profit and delivery programme. My developing score together with my s&c score has left me in the at risk category. Also, are the obliged to share with me the level bar score that I needed to achieve to avoid being at risk? They suggest they don’t require to share that score with me. Thanks for any advice. Douglas
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Hr are aware and head of design as both conducted my consultation. I also wrote to HR at the time concerning my pr.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employed full time. No union.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: i disagree with the scoring and at end of March I was considered business critical and worked right through (including now)on 20% reduced salary and hours reduced to 4 day week. I continued working 5 days. There were others in the same role as me furloughed on 80% pay whom are back at work and not at risk. Doesn’t seem fair.
Submitted: 4 days ago.
Category: Employment Law
Expert:  Ed Turner replied 4 days ago.

Hello. I am Ed, a Solicitor qualified in England & Wales with over a decade’s experience in the legal profession advising clients.

I specialise in Commercial Contracts, Business Transactions, Employment, Dispute Resolution, Personal Injury and Road Traffic Law and will be able to resolve your legal problem today.

Regarding the site’s automatic offer of a Premium Service Phone Call, I shall be delighted to talk with you by phone to discuss your issue in greater detail if you accept the offer.

However, if you do not want a phone call, please cancel the offer for a Premium Service Phone Call and you will not be charged extra.

Expert:  Ed Turner replied 4 days ago.

To enable me to answer your query, please provide me with some further information.

How long have you been employed with your employer?

Customer: replied 4 days ago.
I have been employed 4 years
Customer: replied 4 days ago.
No I’m looking for straight up advice without forking out £44.
Expert:  Ed Turner replied 4 days ago.

If you do not want a Premium Service Phone Call, do not accept the offer and you will not be charged extra. I am happy to provide you my answer by text on the Portal.

I have not received a notification that you have accepted a Phone Call from my side and therefore you have not been charged extra.

Expert:  Ed Turner replied 4 days ago.

Unfortunately, if you have been temporarily “laid-off” due to Covid-19 i.e. “Furloughed” for more than four weeks continuously, then this may create a Redundancy Situation and your Employers are acting within their rights in considering you for Redundancy.

Since you have over two years’ continuous employment you are entitled to a Statutory Redundancy Payment (“SRP”) in addition to your notice pay. The calculation for SRP is calculated by the Government’s formula which you can find on the .Gov Website (https://www.gov.uk/calculate-your-redundancy-pay) and is based on the Employee’s age, net weekly salary and length of employment at the Effective Date of Dismissal.

In addition to SRP, you are entitled to your Notice Pay under your Contract of Employment. You may either work your full notice period or be paid Payment In Lieu of Notice (“PILON”) net of PAYE Income Tax and National Insurance Contributions, as well as accrued Holiday Pay and any other contractual benefits, such as performance-related bonus.

The employer must follow fair a Redundancy Selection Process before making you Redundant and cannot do so based on the Employee having a Protected Characteristic under the Equality Act, such as Race, Gender, Religion or Belief, Pregnancy and Maternity, Trade Union Activity or being a Whistleblower.

Although Redundancy is a Dismissal for Employment Rights purposes, it is a potentially fair reason for Dismissal and is probably the “cleanest” and least contentious way to terminate an employee’s contract of employment as it is the position that is redundant, not the employee themselves.

Expert:  Ed Turner replied 4 days ago.

I hope this resolves your enquiry. Please revert to me if you require any clarification of my answer to your question and I will be delighted to assist.

Otherwise, I shall be grateful if you will please mark your enquiry as “Closed” and give me a “Positive” rating in order to conclude this matter.

Kind regards

LawyerEd

Customer: replied 4 days ago.
No I’m not happy you didn’t answer anything I asked. Instead you sent me a script for redundancy which I knew all about. I asked if it was fair for someone else to downgrade my performance review who knows nothing about me and wasn’t present at my PR? Is that legal?
Also am I entitled to know what the scoring bar was set at??
Happy to receive a response to those questions.
Expert:  Ed Turner replied 4 days ago.

If the employer has not followed a fair redundancy selection criteria, it may be evidence of unfair treatment allowing you to claim for unfair dismissal or constructive unfair dismissal in the tribunals.

I do not think that the fact that person making the redundancy selections was not actually present at your previous performance review will have any effect on the question of fairness. The employer should have access to your employment record notes of the PR and can base their decision on those.

However, I would need to see all documentation and consult with you in-person or by phone in order to advise more fully.

Expert:  Ed Turner replied 4 days ago.

You appear to be concerned that your position has not really become redundant and your employer may be looking for a convenient reason to terminate your employment without going through the contentious process of a performance and conduct investigation, disciplinary and dismissal. However, the Tribunal are unlikely to be persuaded by your arguments as they will not interfere with the Employer’s business decisions by “looking behind” the commercial realities of the decision. As long as there is a semi-arguable case that your role is redundant, the Tribunal are unlikely to decide that your dismissal was unfair unless you have hard evidence (such as leaked emails and memos from your Employer’s management team) that they were using redundancy as a convenient excuse to get rid of you.

The only successful Tribunal Claim for Unfair Dismissal that I have come across based on "Redundancy under false pretences" was where the Claimant Employee had come across leaked internal correspondence with the Respondent Employer proving that they wanted to get rid of him due to personality clashes and were using Redundancy as an excuse to avoid going to the trouble of a proper Performance Management and Disciplinary procedure.

Conversely, in an older Claim, the Tribunal ruled that while the Claimant was indeed made Redundant by the Employer due to performance and capability issues, the Tribunal found that the Employer’s concerns in relation to the Employee’s performance and capability were correct, yet the Redundancy Situation had arisen partly due to the Employee’s poor performance. Therefore, the Dismissal on the grounds of Redundancy was fair and Tribunal awarded the Employee no additional award at the Hearing than what the Employer had originally paid them!

I believe that it is risky and costly for you to pursue this matter to a Tribunal. If you have been offered a generous severance package by your Employer, you should take it rather than attempt to uphold moral principles of loyalty and honesty as a true reward for your hard work.

Customer: replied 4 days ago.
It doesn’t sound right that management 450 miles away can downgrade a PR even though the PR content describes someone of value and plying an important role key member of the team etc etc.
Can you also answer the question about them sharing the bar level score. The employer doesn’t want to share this.
Expert:  Ed Turner replied 4 days ago.

There is very often a large gap between why most right-thinking people consider to be just and moral and what is permissible under the law. Unfortunately, a "Suit" and a "Pencil Pusher" may determine an employee's fate with the employer from the other side of the world and there is no legal repercussions. As I say, Redundancy is a commercial process and there is not necessarily any adverse reflection on you as an employee, much less as a person.

You are entitled to what data your employer holds on you, including your Redundancy scores and note. I recommend that you subject a Data Subject Access Request under the UK's Data Protection Act 2019 and the EU's GDPR for copies.

Expert:  Ed Turner replied 4 days ago.

I have answered your questions as far as I am able to on the Portal. Obviously, there is a limited amount of advice I can give based on a few lines of text on the Just Answer instant messaging Portal. Very often the best I can do is “point you in the right direction” for the sake of seeking more detailed advice.

If you want further bespoke advice, I need to review all relevant correspondence and documents and advise in a telephone call. I will place an offer of a Premium Service Phone Call Request through on the Portal. You may accept or reject it at your leisure.

Otherwise, I shall be grateful if you will please give me a positive rating in order to close this thread.

Kind regards

LawyerEd

Customer: replied 4 days ago.
Thanks Ed. This is very useful. I don’t think I require anything further at the moment. Regards
Douglas
Expert:  Ed Turner replied 4 days ago.

I am delighted that I have resolved your enquiry.

Please give me a five-star rating on the Portal in order to close this thread. Thanks, Douglas. :)

Kind regards

LawyerEd