Skinnered has a point - if no procedure is followed at all for a disciplinary dismissal under the ACAS Code, almost any dismissal will be unfair. I've done this in practice at ET level.

Of course that then makes the remedies hearing the point of battle. It's possible to get an unfair dismissal verdict on procedural grounds, but still be awarded little or no compensation as the dismissal would have been fair if a correct procedure was followed.

The ACAS Code doesn't apply to redundancy dismissals, though, so that won't help the OP. I think Williams v Compair Maxam and Polkey v AE Dayton Services are the most relevant cases here. ACAS guidelines for redundancy aren't legally binding, so the arguments are mainly

common law based.

Redundancy is a dismissal.

An employee in a redundancy situation who brings an action before a tribunal on the grounds that the procedures used were contrary to redundancy precedures, which should as a minimum bear some resemblance to the ACAS codes of practice, which the tribunals do recognise, is making an appeal against unfair dismissal.

The question for the tribunal to determine is whether or not the dismissal was fair. This is the point at issue in an unfair dismissal case. It will rely, when determining this, on whether or not the ACAS guidelines, if applied, could have caused a reasonable employer to reach a different conclusion concerning the dismissal.

The ACAS guidelines stipulate that there be notification and consultation before a redundancy dismissal is finalised. When a redundancy notice is issued as a fait accompli and there is no notification or consultation it would be fair to say that the employer did not act reasonably. Especially, as in this case, where there were several avenues open to the employer, short of redundancy, that he could have at least considered.

What about getting first refusal on any other positions within the organisation?

What about fair, unbiased selection criteria, agreeable to all concerned in advance?

I'm sorry Emmzzi but I don't have a library of case law to draw on but if you can provide examples of where surrender and 'se la vie' are the basis for employment law I would withdraw disgracefully.

In the struggle to keep one's head above water in the face of corrupted pomposity one has to insist that one is right, even if one is wrong. After all, that's how those who would grind us down manage it.

valid points around redundancy and dismissal accepted and agreed with, i fail to see a consultation breach here but only as i can't remember any cases for less than 20 employees who were not consulted ( i have become rusty and it's Saturday night meaning the red wine may be clouding my memory), from what i've read of this thread over the last few days

1. Arguing the carpenter shouldn't have beaten the carpenters mate in an interview/assessment process is pointless imo at face value

2. the only possible complaints i see are failure to score correctly (i'd put this as harder to prove than constructive dismissal when adding 1) and unfair dismisaal as there was not a redundancy situation (the complainant can show the agency workers actually are doing the job now) e.g. the post has not actually gone.

I'd give both of those about 1% chance of succeeding from what is written here.

Happy to be shown otherwise, can't see it being long before the next redundancy review in my office comes along so keeping my hand in is something that would be a good idea for me

edit sidewinder, you are indeed correct, the moment i read that the arguments i had with our solicitors came rushing back to me as i was challenging under that exact reason, they still told me to &^&^ off, as did the employer as there was a "potential"!

Read the ACAS guidance on redundancies.

Genuine meaningful consultion must take place whether it is 100 or 1 involved. Telling someone he's out is not consultation.

The man is now jobless. His manager told him he was being made redundant. His job is still there as are other jobs he could have been offered.

If he was told that he was redundant when there was no redundancy situation then there must have been some other reason for his dismissal of which he was not informed. Ipso facto, unfair dismissal?

If a selection process is to be used the criteria should be agreed with those involved.

The opportinity of taking up other jobs within the organisation should be given if other jobs were available to be filled.

Correct redundancy procedures were not followed in this case, ipso facto, unfair dismissal.

Read the ACAS guidance on redundancies.

 

Genuine meaningful consultion must take place whether it is 100 or 1 involved. Telling someone he's out is not consultation.

 

If a selection process is to be used the criteria should be agreed with those involved.

 

The opportinity of taking up other jobs within the organisation should be given if other jobs were available to be filled.

 

Correct procedures were not followed in this case, ipso facto, unfair dismissal.

Once again, can you please be very careful when making a link between poor procedures and unlawful procedures?

The ACAS guidelines are GUIDELINES. They cannot be held up as a 'must do or it is Unfair Dismissal'. There is a difference between statutory rights and good practice.

Good evening again Sidewinder, please advise;

The Trade Union and Labour Relations (Consolidation) Act 1992 give ACAS the statutory right to issue codes of practice on matters relating to employment relations etc.

Those codes are then sent to Parliament and if passed they become statutory instruments.

The same law makes it clear the extent to which tribunals can refer to and rely on those codes in determining issues before it, indeed it makes it a requirement for them to do so. It also gives tribunals the power to penalise anyone for non-compliance.

This brings us back to the reasonableness and fairnesss of the issue being heard, which is the tribunal's primary object in determining. The tribunal holds that the codes are fair and reasonable until, in the particular case before it, it can be persuaded otherwise. Deviation from contractual terms of employment, or in their absence, the ACAS codes, has to be justified as being fair and reasonable under the circumstances by the one doing the deviating. The aim of the other party is obviously to persuade the tribunal otherwise.

My question is, if the above mentioned law has been revoked what law revoked it and what law has replaced it?

In the struggle to keep one's head above water in the face of corrupted pomposity one has to insist that one is right, even if one is wrong. After all, that's how those who would grind us down manage it

Ah, you are the "all management is evil" school. Well, we're not going to have much to say to one another.

I believe it is important not to give people false hope, bur to be honest, so they can get on with their lives.

If you go back and check the ACAS guidelines again, consultation in the depth you describe applies for 20+ employees.

As far as I can see, it's 2 people involved. They've had a week's notice, they've suggested no alternatives themselves (that's their job, not the employers) and they have gone through a scoring process.

you may argue the scoring process was unfair. That'd be about it.

Good evening again Sidewinder, please advise;

 

The Trade Union and Labour Relations (Consolidation) Act 1992 give ACAS the statutory right to issue codes of practice on matters relating to employment relations etc.

 

Those codes are then sent to Parliament and if passed they become statutory instruments.

 

The same law makes it clear the extent to which tribunals can refer to and rely on those codes in determining issues before it, indeed it makes it a requirement for them to do so. It also gives tribunals the power to penalise anyone for non-compliance.

 

This brings us back to the reasonableness and fairnesss of the issue being heard, which is the tribunal's primary object in determining. The tribunal holds that the codes are fair and reasonable until, in the particular case before it, it can be persuaded otherwise. Deviation from contractual terms of employment, or in their absence, the ACAS codes, has to be justified as being fair and reasonable under the circumstances by the one doing the deviating. The aim of the other party is obviously to persuade the tribunal otherwise.

 

My question is, if the above mentioned law has been revoked what law revoked it and what law has replaced it?

ACAS guidelines haven't been mandatory since 2009, skinnered. We have a Tory-LibDem coallition government now and Vince Cable has been at the forefront of eroding employees' rights. I believe Theresa May is desperate to take the UK out of the EU court of Human Rights. Justice and law are often two different things. Yes, it would be justice, but it ain't law.

I can't remember the exact name but it was something along the lines of statutory dispute and dismissal procedures which underpinned the legal basis of grievances and the acop from acas which were repealed in 2009, the TULRC does not apply here, i thought on sat when i posted, i know so now as there isn't the partaking of wine

less than 20 employees and there is no right time a certain time of consultation, yes it must be meaningful and there should be a "view" to reaching agreement on selection criteria through consultation (it does not have to be accepted by the employer, only considered and it is heavily implied agreement should be sought) an employer will always look to agree the criteria with TU's or the workforce because if it does then claims for unfair selection criteria are harder to bring if it is agreed in the first place!

the key part of this entire thread is this:-

Hubby received a letter today and it does say they will take into consideration the LOS.

He got his score point chart thing today, he score 36, we think the other guy is deffo going to get less, this was due to a written warning 2 years ago.

Without knowing the employers exact selection and scoring criteria, e.g warnings are only counted for 1 year i see no potential claim at all, consultation has taken place the employer has agreed to consider it in writing, the employees have been scored and i will assume with fair selection criteria from the posts here

Ah, you are the "all management is evil" school. Well, we're not going to have much to say to one another.

I am mortified that you should think this Emmzzi. What I do believe is that managers and employers of the type complained of on this site are beneath contempt. I think that is what I conveyed. By no means are they all bad; the good ones will not act in such a way as to be complained of on here in the first place.

All employees have the right to reasonable notification and meaningful consultation. In this case they could hardly suggest alternatives when they were not consulted or even informed until the deed was done and dusted.

ACAS guidelines haven't been mandatory since 2009,

Why does ACAS publish this in its guidance then?

 

ACAS Guidance - April 2011

The Acas Code of Practice sets out principles for handling disciplinary and grievance situations in the workplace.This guide provides more detailed advice and guidance that employers and employees will often find helpful both in general terms and in individual cases.

 

Employment tribunals are legally required to take the Acas Code of Practice into account when considering relevant cases. Tribunals will also be able to adjust any compensatory awards made in these cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code. This means that if the tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25 per cent. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out int he code they can reduce any award they have made by up to 25 per cent.

 

 

 

 

I can’t figure out the constant assertion that the employment rights every employee is covered by no longer apply or my interpretation of them is unsound. I make no apology for inspiring some hope where there is despair, particularly when there is always hope. But how can wrongly asserting that the laws and procedures to which aggrieved employees have recourse no longer apply be justified?

I see no conflict between the section you quote and "not mandatory." Guidelines can be replaced by other reasonable procedures.

I see no conflict between the section you quote and "not mandatory." Guidelines can be replaced by other reasonable procedures.

The point I am making is that Tribunals ARE STILL obliged by law to take ACAS guidelines into account in cases where they are relevant. That means that as far as tribunals are concerned those guidelines have legal status. Their contents HAVE to be considered.

Obviously if some other terms and conditions are spelled out in employee contracts then those have to be considered also, but in the context of reasonableness and fairness, which is the prime duty of the tribunal to determine.

"Into account" does not equal legally binding or statute. Legal status =/= the law. So how it is "taken in account" is a bit vague, isn't it?

If in doubt visit a lawyer, says I, which I believe Becky suggested on page one (free session to see if there is a claim) and still seems like the best idea (see signature)