forced into redundancy or, is it constructive dismissal?

[natsmanc]

Hi, I am hoping that somebody out there may be able to help me.

I have been working for this company for 1.5 years, quite happily and from what I gathered they felt the same (I had a great appraisal several months ago.) During this appraisal I asked to be considered for promotion and my manager and the area manager agreed that they would "see what they could do."

However, on monday I was called into the office by the 2 managers and was told that the company was making some changes(The company is basically a store which opens late nights and weekends).
I was told that as the company was not making any money from retail clients, it had been decided that the store was going to open during office hours on an appointment only basis, therefore my role as a sales person would be made redundant.
There would be a job available for a Sales Administrator, however if I wanted this role I would have to "fight for it", against a colleague who had only been working for the company for 6 months. I was told that the person they wanted for this role had to be able to understand Spanish and that if I wanted the job my colleague and I would have to take "tests" in the Spanish language and the computer system which is ALL in Spanish!!

I do not speak any Spanish so find this quite unfair as it hasnt been a problem for them over the last 1.5 yrs!!!

Also the new role isnt that different from what I already do as I am already using that computer system and do lots of admin work which I am more than capable of doing.
During this conversation, I was told that I leave voluntarily, I would recieve 2 months pay as a good will gesture. If I decide to "fight", for the admin job and they do not select me for it and then make me redundant, I will not recieve a payment from them!
I genuinely feel that I am being forced out of a job that I love and they made it pretty clear that I was not wanted there!
Can anybody help please? I dont know what to do!!
ps, I have until tomorrow afternoon to tell them what I am doing

Thanks in advance!!

[Sidewinder]

Is your colleague also a candidate for redundancy, or is it only your position? Does he speak/understand Spanish?

On the face of it this would seem to be a case of improper conultation, however more details are required to investigate further.

[natsmanc]

hi, my colleague is apparently a candidate for redundancy however she has a degree in spanish and has studied there at university.

[Sidewinder]

Ah I see. Well in that case, it all comes down to proper procedure and fair selection criteria. Your employer must make the selection of staff eligible for redundancy solely on the basis of the work being lost and this is known as the 'pool'. If there is an alternative position available (irrespective of whether it is an existing role, or a downgraded version of your existing position), then those who would otherwise be made redundant should have an equal opportunity to express an interest and be considered for it. If there are two of you in the pool and one decides not to apply for the new position then further selection is irrelevant. If not, then each person should then be assessed against set criteria, and judged on merit, often using a points system. The employer should look at things such as punctuality, productivity and adaptability, together with any special qualities which might benefit the employer in the future. From that perspective, your good past performance and appraisal should score highly, but the knowledge of Spanish would counter this in your colleague's favour. The last in, first out argument is not often used unless it can be clearly demonstrated that there were other compelling reasons, as it is very easy for discrimination claims to arise. Whoever is successful in being offered the alternative vacancy should be given this on a trial basis with the option to take redundancy if not satisfied within an agreed period.

Insofar as what has happened already, things are starting to look a bit iffy. If I understand correctly, you have been advised only verbally that your positions are to become redundant. You should have been informed in writing of the situation and the available alternative, and be given the right to be accompanied. A further meeting should have been scheduled, again with the right to be accompanied to determine whether you wish to be considered for the new role. Assuming that both of you do, then the employer will have to consider each applicant before meeting a third time to advise of the outcome and formally dismiss the employee concerned on the grounds of redundancy and advising of the effective date (giving notice as required in the contract - although in many cases the employer does not make the employee work for all of this period, and if worked should allow reasonable time for retraining or interviews). As with any dismissal, you must be given the right of appeal and informed in writing of exactly what is happening.

I do not like the sound of an incentive to make yourself redundant. This sounds like a bribe in order to waive your rights to due process and could lead to a complaint of discrimination on your part if you looked hard enough for such an angle. Tomorrow is also far to soon to give a final decision, and you need written notification of what your options are. Granted you are not eligible for a redundancy payment as this needs two years service to be compulsory, but any financial offer cannot be binding if only a verbal agreement.

If you get the opportunity in the morning, phone ACAS on 08457 474747 and speak to an advisor for free impartial advice. If pushed sooner by the employer, explain that you have taken advice, and have been requested to get the details of what is being proposed in writing, before consulting further. A fair procedure must allow you to take legal advice before making any decision.

Sorry it took a while to come back to you - Good Luck.