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Wrongful redundancy?

(32 Posts)
ElinoristhenewEnid Wed 10-Aug-16 19:55:24

What comeback do you have if just over a month after you are made redundant your job is advertised as a vacancy?

thanks

HandbagFan Wed 10-Aug-16 20:40:59

None usually - the role only has to not be needed on the day you're made redundant, there is no minimum time before the company can hire again.

Can you give any further details?

AgentProvocateur Wed 10-Aug-16 20:59:10

I thought they couldn't advertise/fill the role for six months after they'd made it redundant.

ButteredToastAndStrawberryJam Wed 10-Aug-16 21:01:10

.

lougle Wed 10-Aug-16 21:22:41

If you've worked there over two years and you raise a claim within three months, you could claim unfair dismissal on the grounds that it wasn't a real redundancy. The company would then need to demonstrate that they followed a fair process in making you redundant and that it was a genuine redundancy.

ElinoristhenewEnid Wed 10-Aug-16 21:26:02

Small 'retail' outlet with 2 members of staff on each shift - early and late, plus an agency employee who covered holidays and sickness as and when.

Responsible for taking money from customers and emptying cash machines from customers paying via machines and reconciling cash and preparing for banking.

1 staff member on each shift counted machine money and prepared all takings for banking, the other took cash from customers paying manually.

Decided to go to machine only transactions and 1 member of staff only needed to supervise across both shifts and count all the money. This post given to staff member who had been employed for 2 months.

1 staff member let go as failed probation after 2 months and the other 2 staff members who had been there over 5 years each made redundant- not allowed to apply for the supervisory post. 2 employees made redundant were told there was no alternative employment elsewhere and received basic redundancy package.

Just over a month later 2 posts for cashiers to help count the machine money and assist supervisor advertised - 1 post given to agency employee and the other being advertised to the public. They feel that in fact these posts are their original jobs.

OllyBJolly Wed 10-Aug-16 21:49:06

What do you want to achieve? Your job back, financial compensation or revenge?

Handbag is correct. The job only has to be redundant at the time of the redundancy.

If you think you have been unfairly dismissed under the cloak of a false redundancy, then you have recourse to a tribunal. There would be significant costs, and the gains are likely to be offset by any redundancy pay you received. If you win. The process could take months.

The company can claim that redundancy was genuine and they then found new structure did not work and business needs resulted in a return to close to old system.

It's for you do decide what you want out of this.

ElinoristhenewEnid Wed 10-Aug-16 22:04:53

I think the person concerned wants compensation - given the basic redundancy package - no enhancements - equivalent to about 3 months salary (including payment in lieu of notice).

Due to age and health is finding it difficult to find another job and feels that the redundancy procedure was not carried out fairly - it was decided to give the new job to the person who had only been there a few weeks and the other 2 were told not to bother to apply as they would not be considered.

The other 2 had been employed by the this particular firm for over 5 years but had 30+ years experience each in this particular business; the person given the post was new to the business.

OllyBJolly Thu 11-Aug-16 07:14:52

How much service did the person have?

Is there a suspicion there was age related discrimination?

Do you know what the criteria for redundancy was? If it's based on something like conduct and attendance, and the redundant person came out bottom in both, there is no recourse to appeal. If it was random (and you can conclusively prove that the company did not use objective measures) there is more chance of winning a claim.

prh47bridge Thu 11-Aug-16 08:26:03

I thought they couldn't advertise/fill the role for six months after they'd made it redundant

There is no legal limit.

The ex-employees must start any tribunal claim for unfair dismissal within 3 months of being sacked although that time limit can be extended in some circumstances. Waiting 6 months before replacing the ex-employees means that any attempt to claim unfair dismissal will almost certainly be struck out due to the time limit. Employers are therefore often advised to wait 6 months.

As it is only a month the ex-employees certainly could attempt to claim unfair dismissal. The company would then have to show that it has valid reasons for re-creating these posts - increased business, perhaps, or a discovery that going to machine only transactions resulted in a bigger reduction in income than expected. If that is the situation it would have made sense for the company to contact the ex-employees to see if they were interested in returning. There is no legal requirement for them to do so but it would reduce their exposure to possible unfair dismissal proceedings.

Note that, if they go to tribunal, the ex-employees will be arguing unfair dismissal on the grounds that it was not a genuine redundancy. That claim can succeed regardless of whether or not the selection process was fair. If the selection process was unfair that is grounds for a claim even if the redundancy was genuine.

ElinoristhenewEnid Thu 11-Aug-16 10:34:08

many thanks for all the advice - will pass it on. Ex employee was trying to find out how they could legally challenge the fact that made redundant only for the jobs to be readvertised a month later.

Have not been approached about rejoining and is reluctant to do so as feel relationship has broken down with employer - it seemed obvious that they wanted those 2 out and they had hoped for more money via a compromise agreement but were told it was a straightforward redundancy due to them no longer being needed.

I think the employer suspected them of whistleblowing which involved environmental health and the fire brigade inspecting premises and threatening to close them.

They had not whistleblowed although they had made employers aware of the unsatisfactory issues in the premises but after that the employers seemed to want them out and the new machinery gave them the chance to do so.

prh47bridge Thu 11-Aug-16 10:59:47

If there was no compromise agreement I would be very tempted to try for unfair dismissal in their position.

ElinoristhenewEnid Thu 11-Aug-16 11:14:01

many thanks prh47bridge

daisychain01 Sat 13-Aug-16 05:52:53

Is it really worth going down any such route as unfair dismissal? Really?

The chances of success are slim and what about the expense and personal stress. Not being funny but the job is minimum wage. What do they stand to gain.

Tell them to put all their energies into finding a new job not chasing a company through the courts when they will gain little from it apart from an ulcer.

daisychain01 Sat 13-Aug-16 05:56:08

Plus the fact they have taken an employer through the courts could easily come out if a prospective employer were to do a character search. Then they will avoid the person like the plague as a "trouble maker"

ButteredToastAndStrawberryJam Sat 13-Aug-16 07:01:51

So daisychain01 we should just put up with the injustices in life, sit back and do nothing, let people get away with doing wrong.
'character search' how do they go about doing that hmm oh yeah, I forgot, there's a Government site where you can do these 'character searches', silly me, forgot about that.

OllyBJolly Sat 13-Aug-16 07:18:34

So daisychain01 we should just put up with the injustices in life, sit back and do nothing, let people get away with doing wrong

I get what you're saying but individuals have to weigh up what they stand to gain against the financial and personal cost of fighting a long battle. People have to do what's right for themselves, not wage a war on employment rights on behalf of the world.. The whole tribunal process is frustrating and exhausting. This is a tiny business, there will be few if any documented processes and therefore very little evidence.

Bring pragmatic, I'd agree with Daisy. Just move on.

daisychain01 Sat 13-Aug-16 07:31:16

Buttered, with due respect you clearly don't know what you're talking about.

There is a world of difference between going into a battle that you stand half a chance of winning versus entering in blindly believing "I know my employment rights and I'll get a solicitor on them." No, actually, if the person in the OP were to visit an employment lawyer they will tell them what I've said. Save your small amount of redundancy money and move forward. You're on a hiding to nothing.

Regarding the character search, please stop talking crap, you know damn well it isn't a Government website. Get real. Data about all of us is out there in the public domain, things like employment tribunals through the court system is available.

Companies triangulate data and build a picture about people they want to employ. All of which is collectively known as a "character search."

ButteredToastAndStrawberryJam Sat 13-Aug-16 07:40:59

Right, so employers employing minimum wage staff, as routine will do searches through the court system. I think it's you that needs to Get real
Whether the person OP knows wants to go for it or not, of course they'll need to way everything up.

ButteredToastAndStrawberryJam Sat 13-Aug-16 07:42:51

*weigh

prh47bridge Sat 13-Aug-16 08:12:57

The chances of success are slim

Over 40% of unfair dismissal cases that reach tribunal are decided in favour of the ex-employee. However, many claims are settled out of court by the employer so the actual chances of success are much higher.

What do they stand to gain

The OP has not said that the jobs were minimum wage. They stand to gain compensation.

They certainly shouldn't go into it blindly. They need to take advice. But on the information presented by the OP it sounds like they may have a good chance of winning should they choose to take action.

mouldycheesefan Sat 13-Aug-16 08:20:59

I have worked in recruitment for years and have many friends in the same field. Certainly for very senior roles some background searches may be done. But character searches I have never heard of. How do you know if you do a search that Sarah hunt that did xyz is the same Sarah hunt you are considering offering a job to? Honestly, many employers don't even get round to requesting references let alone anything more in depth. And taking a previous employer to tribunal is no barrier to future employment with another employer. I have recruited people who left previous employment under such circumstances. I don't see them as trouble makers. But I have never ever heard of any employer searching tribunal records for those they recruit to check they never took a previous employer to tribunal. Sorry but I don't believe it happens!

Mumoftwoyoungkids Sat 13-Aug-16 08:25:43

Get them to check their house insurance - they may have legal cover.

OliviaStabler Sat 13-Aug-16 08:56:15

In this case, I've leave it alone and walk away.

What happened was very unfair but if they are going after the employer in the hope of a decent amount of compensation, it will likely be minimal if they did win.

All the employer needs to do is prove the employees were made redundant due to a legitimate reason. Unless there is concrete proof that they were targeted, the allegation will not stand up at the employment tribunal.

prh47bridge Sat 13-Aug-16 09:38:38

if they are going after the employer in the hope of a decent amount of compensation, it will likely be minimal if they did win

If they already have new jobs that pay the same or more than their old jobs then yes, compensation may be minimal. However, if they are still out of work and it is likely be be a long time before they find other jobs compensation may be significant - 6 months pay, perhaps.

Unless there is concrete proof that they were targeted, the allegation will not stand up at the employment tribunal

Rubbish. Employment tribunal cases are decided on the balance of probabilities. In this particular case they don't need to show that they were targeted. Their argument is that it was not a genuine redundancy. As the employer has re-advertised the roles so quickly they (the employer) will have to show that they have valid reasons for re-creating the posts. They may be able to do so but, as it was so quick, they may struggle to convince the court. The fact that they have not contacted the ex-employees to see if they were interested in returning may also count against them.

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