Redundancy - is this unfair dismissal?

[Andy7807]

Hi, I'm posting on behalf of a colleague who I will call T to avoid extra writing!

T has worked for the company for 10 years and has several posts within it. We are currently about 30 employees in two offices. T works in the southern (head) office. He is an Associate Director, really only in writing because he has had no benefits from this title in any way. He is a Project Manager, Office Manager, Regional Manager, HR Manager and the office first aider. The MD has decided that the next few months invoicing is going to be close to our break even point and so redundancies are needed. T's project client unfortunately stopped the current work they were doing and put it on hold. We believed that there would be the 5 project managers in the frame, but it appears to everyone in the office T has been targeted for redundancy from the start and everything has been 'fixed' to achieve this aim. The MD decided to put 5 people in the line for redundancy, the receptionist/PA who is not a fee earner, two junior people and the two associate directors, T and P. P currently has a project running and is 'in' with the client. Before the notices were sent out T was asked how redundancy would affect him, stupid question! The consultation dates were put back for two weeks while one of the juniors was on a two week course. T wasn't informed when this was to be, he only got it second hand from other people. On the day of consultation he was asked several questions from a criteria list which he didn't know and hadn't been given. The MD said he would be able to see the marking guide. In the event, the receptionist has kept her job, no one knows why, only the fact that she occasionally does some typing for the MD. One of the junior members decided to stay full time on her course and leave anyway, the other junior member has been offered a job by another company and is probably going to take it. T is being made redundant. In a meeting with the MD T asked to see his scoring sheet, the MD refused to show it and said he didn't want to talk about it, however he did say he could get it at 9am the next morning. We are aware that the MD then did the scoring sheet that afternoon. Before all this happened a management meeting was held to discussthe situation, T was asked not to attend although he usually attended all the meetings. The other associate director rang someone the day after the meeting and was told that he would probably be alright. He seems to us totally that T has been earmarked form the start because his project was put on hold. He hasn't been offered any other work, although the company has given contracts to three other new members of staff. It is incredible and obvoius to most people that T has been treated poorly and unfairly after 10 years loyal service, no more a company man could you meet! He has been given his scoring today, insulting marks for flexibility and commitment that no one in the company would agree with. We have just heard that the other junior member has been offered more money in way of a car allowance to keep her to stay.

Sorry about the long thread!

Any comments and advice would be most welcome. Cheers

[Ell-enn]

Hi there, In my opinion, this redundancy process does not seem, from what you have written, to have been conducted properly at all.

There are various things wrong with this process from what I can see, one of which is the marking of the selection criteria. When scoring someone the eventual score has to be justifiable. If an employee is selected for redundancy on the basis of i.e. poor performance or unsatisfactory attendance but has never previously been told that he or she is not meeting the required standards, this could lead to an unfair dismissal claim. Any documentary evidence used in redundancy selection needs to be accurate and up to date and if a company is to be seen to be acting fairly it should have evidence in writing to support the scoring.

Also, if an employer is using selection criteria it must apply those criteria objectively. To simply mark someone down as inflexible without giving justification is unfair and the opinions of other line managers who work with them should also be taken into consideration.

What written notice was he given of a redundancy situation (letters, invitation to discuss etc)?

Kind Regards

Ell-enn

[Andy7807]

Hi Ell-en, thanks for responding.

At the end of the week after the management meeting he was given a letter on Friday 21 Sept that he was on notice of redundancy, saying that the consultation would be held on 1st October. That date was changed at the end of September to 15th October because one of the noticee's was away on a course. He wasn't informed of this either verbally or in writing and gleaned it from others conversation in the office. On the 12th T went into the MD to see what was happening and was then told that the consultation would be on Monday 15th, an e-mail was then sent out to the parties involved. I got a copy of the mail as one of my team was on the list, however she was off on the Friday and didn't see the mail till she turned up on the Monday morning. At the consultation the MD went through the criteria with T and asked him his comments to them, ie, how would you rate you're work, etc. T didn't know before what the criteria was going to be and so wasn't prepared. The interview was terminated abruptly and told to meet again 9.30 next morning. Meanwhile the other Associate Director had his meeting which lasted considerably less time. The next morning T was asked if he had any further comments. On the Wednesday morning T was told that his job was being made redundant and he recieved the letter this morning with the marking sheet. In a meeting yesterday when discussing various things the MD wanted a commital from him that he wouldn't go to a tribunal, why would he want that if he didn't think there may be an issue here? Although the company has attempted to follow procedure, because T wasn't involved in the process as he normally would have been I think that it hasn't been done well at all. T even went into the MD to explain what he should be doing on the Friday before the consultation, that is how loyal he is still being.

[Ell-enn]

OK, I would advise him to appeal against the decision! he will need to write a letter to the decision maker advising that in accordance with his rights he wishes to appeal as he considers he has been unfairly dismissed. When he gets a date for the appeal I will advise with getting it ready.

If they want him to promise not to take them to a tribunal, then they need to propose a compromise agreement with a compensatory sum for signing. He would, of course, need to take any compromise agreement to a solicitor but his employer would be liable for the fees for that. I suspect when he appeals against the decision, they will have a rethink!!
Please keep me updated on what happens next.

Kind Regards
Ell-enn
If I have been of help, please feel free to tip my scales

[Andy7807]

Thanks Ell-en, scales tipped!

I had advised him to go to appeal anyway, but as usual he didn't think it will be worth it, but in my view he needs to stick to his guns. The appeal will be heard by one of the directors from our other office, I wouldn't hold out much hope but if we get a date and you could advise from there, it would be most appreciated.

[Ell-enn]

No problem, happy to help.

Kind Regards

Ell-enn

[Andy7807]

Hi Ell-en, T has been asked to go on 'gardening' leave until his appeal which is probably going to be next week, apparently he is unstabilising the offfice, which surprises most people here, seems like a poor excuse. The MD explained to me why he has done it but it doesn't stack up. They will phone him and let him know when exactly the appeal will be held. Is there anything we can do in the meantime? Thanks again for your help.

regards Andy

[Ell-enn]

Hi there, in what way was he "unstabilising" the office?
Also, when did he put in his letter of appeal and what was the effective date of his redundancy (i.e. what would have been his leaving date?)

Kind Regards

Ell-enn

[Andy7807]

Hi, I was told by the MD that one of the girls felt that he was blanking her and she was stressed out, (she's not losing her job). It may be that the MD spoke to her and she is stressed anyway and he has taken this as a way to keep T out of the office for a while. I haven't spoken to the person involved as I am a little surprised by her comments if she did make them, she was a friend of T. T did speak to her this morning to ask how she was as she was off sick yesterday. Most people are disappointed he has had to leave because even though he is under this threat, he has continued in his normal way and kept good cheer. T responded by Email last Friday that he wished to appeal. Although a date hasn't actually been formalised he was working on ten weeks notice from the day he got the letter which was Thursday. The MD I believe would be quite flexible on a leaving date. T has also asked for a higher figure than the statutory amount as a redundancy payment.

[Andy7807]

Hi all, an update. I have refrained from posting in the last week as I was paranoid that the employer was alos looking atthis site. However Ell-en helped greatly ( by PM's) by providing a draft letter for an appeal, enlcosed here is the jist of it. I will start another box to explain further.

I am appealing against your decision to dismiss me by reason of redundancy as I believe I have been unfairly dismissed due to the following:


1.Unfair selection process:

a)I believe that that I was targeted for redundancy before being advised of being at risk and therefore correct procedure has not been applied to the consultation process.

I believe this to be the case because – I was asked questions regarding how redundancy would affect me before I had even been put at risk.

I was excluded from a management meeting which I attend as part of my normal duties.

I was not notified of the date of consultation meeting or my rights regarding redundancy process, nor was I given a copy of the selection process and criteria.

At the consultation meeting I asked to see my scoring and it was refused, but was told I could get a copy the next day.


b)I believe that the scoring applied to the criteria is unjustified and defamatory and cannot be substantiated.

“The drawing up of criteria, however, is not enough to guarantee fair and reasonable selection. Even though the criteria may satisfy the test of objectivity, the selection will still be unfair if they are carelessly or mistakenly applied. Employers will need to demonstrate that there has been comparative analysis of the information relating to all in the unit of selection if qualitative criteria are used.

The standard of work performance or aptitude for work of those to be selected may be an important consideration. However, case law shows that there should be some objective evidence to support selection on this basis, for example by reference to the company's existing appraisal system.”
Source: Acas - Home

“If an employee has been selected for redundancy on the basis of poor performance or an unsatisfactory attendance record but has never previously been told that they are not meeting the required standards, this could lead to an unfair dismissal claim”.
Source: www.eef.org.uk


c)I have been asked to confirm that I will not take any action against (name of employer) by way of Employment Tribunal as a result of my redundancy, but no compromise agreement with compensatory sum was offered. This is unfair practice and places me at a disadvantage regarding my rights.


2. Other Work

I have been given no opportunity to offer my suggestions for alternatives to redundancy, not has the subject of alternative employment been discussed, yet other members of staff have been given new contracts, and one given an increase in salary as an incentive to stay with the business.


I therefore request that you review the decision to dismiss by reason of redundancy.

I look forward to your receiving your response to the above points and your proposal for remedy.

[Andy7807]

The appeal was heard last week by a director from one of our other offices. T had around 6 pages of information, from the beginning of the whole thing and set out a timeline highlighting all the mistakes and non communication and the fact that it was evident that he had been singled out from the start for redundancy. I sat in on the appeal and an excellent case was put forward. It would be hard to see how anyone taking into account all this info could not come to the right conclusion. The director promised that he would look at it as an independant.

T received a letter this morning saying his appeal was unsuccessful. There was no explanation of the points that were brought out, there were no reasons as to the justification of the scoring criteria and why the information wasn't passed out correctly. A complete whitewash. The directors have obviously collaborated to come to this decision. I beleive the MD is taking a risk that T will still be loyal and not take the company to ET.

[Ell-enn]

Hi there, I'm sorry to hear of the decision - it must be a great disappointment to your friend. I hope he has now realised the time for loyalty to this company is over!! ACAS guidelines quote: "inform the employee of the results of the appeal and the reasons for the decision and confirm it in writing".

If he has not received an explanation for the points he raised in appeal, then my advice would be to consult an employment lawyer - many of these firms offer free initial consultations. At the end of the day, he has been treated unfairly and the employer should be made to answer for it.

Please keep me informed of what he intends to do.

Kind Regards, Ell-enn
If you think I have been helpful please feel free to tip my scales.

[Andy7807]

Thanks Ell-en, it is very disappointing, however, it was nothing less than we expected. T has two job offers on the table and so he will be ok. The point is the unfairness of how this has been done. I would think that it will be happenening again soon as our work is drying up. I will send on your comments and see what he thinks. Many thanks for your help again.

[Ell-enn]

You're welcome Andy - it just makes me mad when employers treat people unfairly. The system is there to protect employees from such treatment and employers who disregard it should be taken to task. After all it has taken years and a lot of hard work by campaigners to get these rights in place and employers who don't play by the rules should be taken to task.

I hope everything works out well for your friend with his job offers. However, if he does not take this any further it will only give the employer confidence to treat others in a similar way.

If you need any help in the future, please don't hesitate to ask.

Kind regards
Ell-enn
If you think I have been helpful please feel free to tip my scales

[Andy7807]

I agree totally. Tried to tip your scales again, but apparently have to spread some reputation around before giving it you again! Excellent advice and help.