Constructive Dissmissal

[stuandleisa]

I dont know if anyone can give me any advice on a worrying matter at work.

 

I have been with my employers now for 8 yrs and am very competent in my current role. Last year i had a disagreement with my manager due the way that I dealt with situations in her absence. (she was off sick for approx 8 weeks). In that time I had little or no help or support from out head office and managed to keep things ticking over.

 

Then she returned to work and was a completely different person. She was always on my back and picking up on minor things that I had done or not done. The working relationship got worse and during a meeting with the area manager and my manager, the area manager said that I was probably in the wrong job and they would support me if wanted to look at changing my job. I left the meeting feeling completely deflated as u can imagine.

 

Then over the coming weeks, myself and my work collegues were informed that they were doing a restructure of the office staff. We were informed that my full time post would be made redundant and 2 assistant managers posts of 30hrs and 25 hrs would be created. Both myself and my work colleague that I work with would be able to apply for the posts but they were also opening it to another member of staff also (even although she did not have the relevant experience to do the job).

 

I had the interview on 27/1 and was informed that day that I had been unsuccessful. My work colleague was given the 30 hr post - in effect my current post and the other member of staff was unsuccessful also. I was told they would be advertising externally and I could apply again if I want. I could continue in my current post until the interviews had been held again.

 

However, I have been off sick since then and my line is due on 5/3. The interview is going to be held on the 9/3 and I dont know if I can stay off sick until after the interview????

 

Can anyone help? I dont know what to do if there is anything at all.

 

Leisa

Edited March 1, 2012 by honeybee13
Putting in some paragraphs for ease of reading.

[padja]

this is a minefield, you possibly have a case of constructive dismissal, I suspect however they have taken legal advice and by making your post redundant may have circumnavigated that. I'm supposing your not in a union, I would suggest you contact ACAS they are quite helpful and can help you.

[stuandleisa]

Thanks for your reply. I am not in a union. I have looked on the ACAS website and did not get very far. Do u recommend calling them then?? Any info on having to go back to work before the interview??

Leisa

[mariefab]

It seems to be quite a muddled situation.

 

Let's start with the following questions:

 

1. When did the meeting with your manager and the area manager take place?

Was the purpose of the meeting to discuss your working relationship difficulties? If not, what?

When the area manager spoke about supporting a job change did they indicate whether this should be at your current workplace or did they suggest that you should leave/resign and work somewhere else?

 

2. What was your role?

What were your contracted hours?

How many other people at your workplace perform the same or a very similar role?

 

3. When were you told of the restructure?

When were you informed that your role would be made redundant?

Is your role the only one being made redundant?

 

To answer your question; Yes, you should return to work after your sick line runs out and before the interview.

[stuandleisa]

Thanks for your reply.

1. The meeting took place back in October when my manager returned to work from sickness. I was called into the meeting to discuss a letter of complaint that one of our clients had written about me. This had first come in back in July 2011 but because the manager had been off sick the area manager was investigating it. I had previously had a meeting with him and we discussed the complaint and I justified the points of complaint and he was drafting the letter to return to the client. It was to let me know that he had sent the letter and to give me a copy of this. He confirmed that no formal action would be taken but it would be noted in my personal file.

When he said this I very much got the impression that he meant that I should leave although he didnt actually say leave. Only him, the manager and myself were present in the meeting.

2. I am a Care Coordinator for a local care company. I have a contract for 35hrs. The structure is 2 admin staff, the manager myself and a senior care attendant on a contract of 9 hrs. I trained the senior care attendant when she started in the office just under a year ago and she is still not trained to do all aspects of the job to date and she was successful in getting the 30 hrs assistant managers post.

3. I think we were told about the restructure at the end of November 2011 and I was verbally told at a team meeting that my post was going to be made redundant and yes my role is the only role to be made redundant.

 

What implications would there be if I were to be signed off again until the interview date??

[mariefab]

I can't see that there would be any implications in such a case.

You would be signed off as unfit for work but you could still attend an interview.

 

So the structure was:

1 manager working (?) hours.

2 admin staff working (?) hours.

1 senior care coordinator working 9 hours.

1 care coordinator (you) working 35 hours.

 

Has there been any change to the roles or the working hours of the manager or the 2 admin staff?

[stuandleisa]

Thanks so much for taking the time to respond.

 

As for the structure it is as follows:

1 manager 35hrs

2 admin 32 hrs each

1 senior care attendant contracted for 9 hrs but actually working 25-30hrs in the post due to being so busy

1 care coordinator - me- working 35 hrs.

There has been no change to any other roles within the office of the manager or 2 admin staff.

[mariefab]

It looks like the only effect of the restructure would be that instead of 1 SCC and 1 CC there will be 2 Assistant managers.

As they've already offered the 30 hour role to the SCC why are they requiring you to competitively interview for the remaining 25 hour role against someone who isn't at risk of redundancy?

Have they indicated that they don't consider it to be a suitable role for you?

Or have you suggested that you won't take the cut in hours?

[mariefab]

I think that I might have misunderstood what's happening here.

 

When you had your interview on 27/1, was it for both/either of the 2 assistant managers posts?

[stuandleisa]

When interviewed on the 27/1 it was for either of the new posts. I was asked which one I would prefer and my response was that I would prefer the 30 hr post but I would happily take the 25hr post if offered it.

They would not give me any feedback from the 1st interview saying that it would be bias for them to do so if I applied for the post again. I strongly believe that the Manager has decided that she no longer wants me on her team and this is the reason for me not getting one of the positions in the first place. I also believe that is why they brought the 3rd person in the the equation for the 1st interview because if there was only the 2 of us (already doing the job) they wouldnt really have been able to not give me a post but my bring a 3rd person in and us both not getting it made it look like a fair decision.

Other than the comment from the area manager last year, no one has ever indicated that I am unsuitable for the job. I have the experience that none of the other staff has and have been doing the job for the last 4 yrs increasing my confidence and skills in the role.

 

I might also add that I have worked with the manager for the last 4 yrs and until the end of the summer last year we had a good working relationship and have supported each other through some really difficult times and have also been friends outside of work often meeting up with our families for social evenings etc.

[mariefab]

Is the 3rd person at risk of redundancy?

[stuandleisa]

No she is not as she works as a care attendant so this would have been promotion for her.

[mariefab]

Did they provide you with job descriptions for the assistant managers posts?

[stuandleisa]

yes they did. both posts are exactly the same and almost identical to my current post. The only difference is they have added supervisions and appraisals for staff which is not in my current contract. I am doing all other aspects of the new post already.

[mariefab]

Who held the interview/s?

[mariefab]

I must say that this is looking pretty dodgy.

Given that they appear to be attempting to unfairly dismiss you with this sham redundancy process; what outcome are you hoping for?

[stuandleisa]

the area manager, my manager and a 3rd manager from another scheme. Ideally i would hold my head up and accept the post if they offered it until i could find a suitable alternative employment as i have a mortgage and 3 kids to support. If this is not on their agenda, they I want them to pay for the hurt/stress that I have gone through since the 1st interview. I know what they are doing is wrong, I just dont know what and how to go about doing anything about it???

[mariefab]

Well it's not a redundancy.

 

http://www.legislation.gov.uk/ukpga/1996/18/section/139

 

See above for the statutory description of redundancy.

 

What they appear to have done here is restructure the SCC and the CC roles, which had 44 combined contractual hours (the overtime that the SCC was doing doesn't count unless they changed the contract), into 2 assistant manager roles with combined contractual hours of 55 of largely the same kind of work.

So the requirement for employees to carry out work of a particular kind has increased.

 

Unfortunately you have no choice, at the moment, but to play the game their way and interview again for the role. I would imagine that the supervision and appraisals would be done by the 30 hour contract.

Have they actually given you notice of redundancy/dismissal?

Do you have anything in writing to show what has happened so far?

[becky2585]

The problem you have here is that this would fall under the bracket of a restructure, rather than a redundnacy situation. In those cases, an employer can indeed take you through a redundancy consultation exercise, as there is, arguably, a reduced need for you to do the work you were doing before - essentially, because your job role has ceased to exist (which means that there IS a reduced need for employees to do work of THAT particular kind), and becuase the two new posts have been created. Case law isn't on your side at present, as Tribunals are highly unlikely to interfere in a restructure, unless there is a compelling argument as to why the restructure shouldn't have taken place. Essentially its a business decision for your employer to make, so you might not have a leg to stand on. It would certainly be difficult to prove, anyway.

 

You should make your points clear to your employer as part of the redundancy consultation, and raise a grievance if necessary. This means they will have to address the points raised, and if they don't, then it makes it more likely that this would be an unfair dismissal. Unfortunately, if they do follow the correct procedure, it's unlikely you'd win any subsequent claims, so your best bet is to hope that they mess up in some other way.

[stuandleisa]

I have been lead to believe that all of the care attendants will be split between the manager and the 2 assistant managers and they will all be responsible for their own team members including supervisions and appraisals.

I have not been given any notice of redundancy/dismissal and they also have never given me anything in writing as the situation regarding my current post.

[gemspan]

Could it not be argued that this is not a redundancy because the job is essentially the same job..but with a different name. The only added responsibility is that of appraisal and supervision...both of these skills can be acquired with additional training. To make sstuandleisa redundant do they not have to prove that the job no longer exists? The job does exist...the name and the hours have just been changed...with the added responsibility of some supervision and appraisal work. While the OP may not have management or supervisory experience, she admits that she trained up the person who was actually given the job. She could therefore argue that she does have supervisory/staff management experience and, indeed, the person they appointed to one of the positions is not more experienced that she is...because she could only train her in what she is trained to do...and nothing more!

 

I do think this is not as simple as a restructure. I believe there is some form of unfair dismissal going on behind the scenes.

 

Do you have legal cover on your home insurance? If so, I'd advise that you call and get some legal advice on this. You have been with the organisation for 4 years and would appear to be more than qualified for the part of the job you have been doing...and with additional training you would become qualified in the other part. Indeed, one could even argue that you are in a stronger position because you know the company policies, procedures etc., - rather than a new start!

 

Good luck

Gemspan