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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 71364
Experience:  Qualified Employment Solicitor
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We recently completed a restructure due to COVID-19,

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Hello,We recently completed a restructure due to COVID-19, basically falling passenger levels in the UK airports resulted in us having to cut costs. So we merged three departments, thus putting 5 Managers/Supervisors at-risk with just two new roles that the five individuals could apply to.All five applied, the process involved an online assessment and face to face interview. We chose the online evaluation to remove any bias that the face to face interview may bring as it scored using its own algorithm without any input from the business.The individual in the old Assistant Manager role had applied for the new Assistant Manager role and scored in the bottom on both the online assessment and the face to face interview.To avoid redundancy, we offered him a Sales Advisor role, as this was the only alternative role that we could offer which he rejected and has opted to take redundancy, however, he has complained that the online assessment wasn't provided to him in his first language.I queried this with him and said I and others were surprised to hear him say this as he appears to be both fluent in written and spoken English and that if he had found the online assessment difficult to understand, he could have raised this and we would have made adjustments. I suggested he appealed the decision, and I would get an independent manager to hear his case.He came back to me again and said that he didn't want to appeal but would take redundancy. However, he has now said that he thinks this is a case of constructive dismissal as the offer of a Sales Assistant is not a suitable alternative role.The language issue makes me nervous, and I am in no doubt that he is using this for a potential claim, but I have to say that I never knew he wasn't English, his spoken, and written English is excellent hence why it never crossed my mind to suggest it be in Portuguese if I had I think he would have been offended.His own line manager is willing to write a statement to say that in the year that he had worked with him he has demonstrated excellent language ability, and at no point has this ever been an issue. Other managers are prepared to do the same.With regards ***** ***** constructive dismissal claim, the sales advisor role is the only role we have available as we have had to make cuts everywhere because of the impact of covid.To be proactive, I have written to him and set up an appeal meeting stating that he is raising further points which should be addressed through the appeal process.I am not expecting him to turn up, but do you think it would be wise if the appeal hearing manager conducted their own investigation in his absence, so we can write back to him and reject his claims?Thank youMichael

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Hi there. Can I just check, how long has he worked for the business?

Customer: replied 15 days ago.
Hi Ben, 8-years

Thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now.

If someone is facing redundancy, you do have an obligation to make an offer of suitable alternative employment, if such opportunities actually exist. If none exist, which appears to have been the case here, you can offer him whatever else is available, which he can consider and potentially apply for, or reject it for being unsuitable and opt for redundancy instead. If you offered him something that was not suitable and he has rejected it and opted for redundancy, that is not constructive dismissal. He has exercised his right to reject it and is getting redundancy instead. Constructive dismissal would exist if you offered him an unsuitable alternative, he rejected it and you are then refusing to make him redundant.

The language issue is something you should have only considered if there was an obvious or likely disadvantage due to is language skills, or he had requested an adjustment to help him with it. If there were no obvious grounds on which to consider he needed assistance in that respect, you cannot realistically be accused of discrimination and he should have flagged this up earlier rather than just proceeding with it.

With the appeal, if he does not turn up just go ahead and do whatever you can without him and make it as far as possible, but he will not be doing himself any favours by refusing to attend.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 15 days ago.
Thank you Ben. That makes me feel better

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best

Customer: replied 15 days ago.
Would he still have 3-months from termination date to make a claim or has this been extended?

Hi, the deadline is still 3 months from the date of termination, unless he can show it was not reasonably practicable to submit it within that time. There is no official extension and it is up to him to show there were extenuating circumstances to justify an extension if he asks for one

Customer: replied 15 days ago.
Thank you, ***** ***** you mind if I send you the letter that I will send to him after the appeal hearing even though he isn't attending, i will happily pay more

Yes you can do so, please post as a new query and I will check it first before quoting (as it will depend on the length)

Customer: replied 15 days ago.
thank you, ***** ***** do.

Thank you.

Customer: replied 11 days ago.
HI Ben, I have sent a new question which is still saying "connecting to a solicitor" how best shall I open up a new case with you so you can review this letter we talked about?

Hi I have picked up the new question so we can continue on there please