Redundancy vs dismissal, advice please

[Bishophogp]

A very close friend of mine has been told today she's being made redundant. She says that they're claiming her written English is poor (English is her 2nd language but she's been here for almost 2 decades and both her spoken and written English have not stopped her from excelling in jobs previously), but also that they're looking for someone more qualified/specialised in special educational needs. Am I right in thinking that the fact they're criticising her performance makes this a dismissal rather redundancy? And as such there are processes that need to be followed which include giving warning(s), providing extra training as necessary, and giving her a chance to improve? None of which has been done.

The job is a learning support role at a specialist college which offers education up to Masters level, and she's been in the job for 3-4 years. There has been a change in management recently. The college attracts predominantly (like 70-80%) international students from China who come to the UK with poor IELTS scores. So although my friend was initially training in specialist education needs, her role is more managing these students who struggle due to their very limited grasp of the English language. There is also a sizable and increasing proportion of students who present to her with severe mental health needs that are not being met elsewhere. Despite this, she managed pretty well and has an incredible rapport with students who respect her and appreciate what she does for them.

I am waiting to hear back from her regarding a few things (if she's a member of a TU, if theybe put her redundancy in writing etc). But in the meantime I'd be very grateful for any advice or guidance from anyone with experience in this area.

Thanks in advance.

Thanks so much for all your advice.

Unfortunately she was not part of a trade union and although she's since joined (before being given formal notice of the redundancy), the union is unable go help her because of a policy that stipulates she must have been a member for at least 3 months before. She has asked that I attend her consultation with her and ai have reluctantly agreed.

If anyone can help direct me to further resources or give me pearls of wisdom I'd be so grateful.

The post has already been readvertised, even before her redundancy consultation/formal notice has been provided. Is this a red flag?

No one else st the institution is being made redundant. Again is this noteworthy?

Having compared both the old and new job descriptions I can see the main difference is a formal SENCO qualification. They have refused to offer or fund her training for this already. Are they obliged to?

Thanks again for all your help!

Has she definitely been told it is redundancy, not dismissal. No they are not obliged to train her.

Yes, but we're thinking it could be a shame redundancy to avoid the lengthier and costlier process of dismissal.

Both require a process though.

As far as I am aware you can't make a person redundant, you can only make a role redundant so if her role continues then its dismissal.
The tricky part is if there is more than one person in the same role and then peoples skills etc can be considered

There's just the 1 person in that makes up the entire department- my friend. They've readvertised the role already but added a new required qualification.

Unfortunately, whilst this does appear to stink of dismissal, I suspect that they have covered themselves enough to say that the advertised role is a new role and that she is not suitable for it. "Redundancy" is often a cover for all sorts of nefarious goings on, but proving it is another matter. And in all honesty, given the circumstances you described, she might be better off with redundancy, because her alternative could be a performance related dismissal. Yes, that would take them longer - but she'd be looking for another job with a poor reference hanging over her.

If I were representing her, I "might" be asking a series of annoying questions, like why her performance had been brought up when there had been no previous questions raised about it; why she is deemed not suitable for a trial for the new role; why the SENCO qualification is suddenly required given that she has been successfully doing the job without it; why she can't be trained... I would ask ANY questions I can think of to make them very uncomfortable. I would also be muttering things like this sounding like an unfair dismissal rather than redundancy. To make them even more uncomfortable. To be clear - you want them VERY uncomfortable. At the point when they start to look very uncomfortable raise what the settlement agreement looks like as she'll need to see their proposals for her solicitor. Don't forget to throw in the fact that it is common practice for employers to pay for that legal service.

At this point do remember to remind them that she will also need the draft of the agreed reference they will be providing before she can agree any terms at all. It's also perfectly fair to have a "mutter" about "what ACAS said about the tribunal" provided you ensure that they "don't hear" you mentioning tribunals because you wouldn't want to show your hand. I trust you get my drift?

If you play your cards well, they will be uncomfortable enough to provide an agreed reference and a bit of a token payment at worst. Play them really well and you might get a bit more money. Because if they think she's going to a tribunal, that is going to cost them dearly whether they win or lose - so it's worth paying her off for her agreement not to. Just don't get greedy and don't fall for your own bluster. She's as well out of there, and if they sweeten the deal a bit, then that's nice. But it is a bluff. In reality, they have a reason to get rid of her - it doesn't have to be a good reason! So she will be going one way or another.

The employer may argue that this is a different role, in which case there is no problem with them making only your friend redundant, nor is there a problem with them advertising the new role before her consultation or formal notice. However, if the only significant difference is the requirement for a formal qualification, they may struggle to justify the need for this qualification if this goes to tribunal.

Having said that, they clearly want to get rid of your friend, so the best outcome is probably a settlement agreement as per my previous post.

Hi OP
I don’t believe that you can accompany your friend. The guidance says:

The right to be accompanied is limited to a colleague or trade union representative. You are not entitled to bring a friend or family member as your companion. Likewise, you are not allowed to bring a solicitor or legal representative to a Disciplinary, Grievance or Redundancy Meeting (except in very limited circumstances).

(Lifted from one of various employment law websites saying the same).

Your friend’s policy and process should confirm if she can bring you as a friend.

I can't thank you enough for this advice! Thank you thank you thank you

OP can attend the hearing if she works for the same employer though (she could be a friend and a colleague). But yes if not employed by them and not a current TU official she has no absolute right to attend, though the company may at their discretion allow it particularly if they are going to rely on the fact that the OP’s friend has poor English skills.

She's let them know I'll be attending as a friend and they haven't objected. We did check first on the ACES website that I'd be able to attend and even speak if required, but I guess the employer could refuse this.

Just an update and a request for any further advice.

Met up for the consultation and I have few questions:

Does the person being made redundant have a right to ask/know if there's any restructuring or redundancies being made elsewhere in the company or if she's the sole person being made redundant?

The person asked my friend if she's look for jobs outside the company (low paid jobs beneath her skill set and experience). This seemed like an odd question to ask. Surely she is obliged to demonstrate steps she's taken to avoid redundancy and not unemployment?

I have further questions but I'm wary about asking them here where they can be asked publicly. ACAS haven't been much help with specific questions (but great with general advice), and the TU isn't able to help her since my friend hasn't been a member long enough.

Many thanks for all your help so far! Ww really appreciate it!

The employer should advertise other internal roles for which your friend could apply but she can choose not to and they could turn her down at interview. There may be some restricted for which those affected are effectively pooled, such as if there are two similar roles in a restructure but more than two potential candidates from those at risk. There should be a rationale behind the role/s becoming made redundant which is shared with those affected.

They're not suggested any alternative roles for her, but are pushing her to prove the steps she's taking to avoid redundancy (and it seems also unemployment!).

My friend is the sole person in a department. She works independently of other departments. When we attempted to ask about restructuring or redundancies elsewhere, we were told they couldn't share this information.

But is there an intranet where vacancies are posted? It does not have to be one in her specific department.

Yes, but I'm sorry I don't see the relevance of this to my questions! (Sorry for being dense, this is very new territory for me)

I didn’t think that getting a job outside the current organisation would make a difference to redundancy. They should point her to anything else suitable in the organisation, but unless it is something like getting a job in another NHS organisation within x weeks/months then another job doesn’t have any impact. It’s the post being made redundant not the person, so her job hunting is not relevant.

If the normal way of advertising internal roles is on their intranet, suggesting she looks there for alternatives is entirely reasonable, They are not obliged simply to give her another role unless a restructure effectively includes one closely related in JD which matches her skillset and she is the only candidate. Did they explain why her current role is now at risk?

You must screen shot the ad for the new role. If they start to get worried & seek advice, they may change it very quickly to make it appear like a different role.

But ultimately, you need to consider what you are trying to achieve for your friend. Let’s say the employer is in the wrong & she fights it. Compensation is based on salary. If she is on a fairly low salary, her compensation won’t cover the cost of a solicitor. Perhaps more importantly, the process is incredibly stressful. There is some financial advantage to dragging the process out and being paid in the meantime but it is a horrible ordeal to go through emotionally. And ultimately she may not win anyway.

She might be better off preserving her mental health and searching for a new job asap.

I am sorry for her though. It is sounding like they are not being fair.

Btw the onus is on the employer to attempt to find her a suitable role within the company (or a different company for example under the same governance).
But of course your friend would need to help them to help her.

When working out appropriate compensation/ settlement, there is consideration of how long it would take the person to find another job.
I can’t imagine they would be considering compensation at this point, but it’s the only thing I can think of why job hunting would matter.
Basically if she finds a job before the matter is settled, it lets them off the hook because they can say “no harm done”.

They've since taken the advert down and in the meeting when I bought it up, apologised numerous times for it being published but claimed it was published in error.

The second point is very important and I'll keep this is mind.

Thank you

I think it was a slip of the tongue, or said without thought. The person leading the redundancy seems wholly inadequate and not aware of internal procedures. When we asked for a copy of the company's redundancy policy, we were told it wasn't a legal requirement (the advert came down the same day). But I think that some senior management employees are themselves no aware of proceedures. I also don't think they were anticipating any resistance from my friend. What is clear is that they're backtracking on a couple of issues and are aware we've picked up on a few mistakes.

Would it be reasonable for my friend to suggest she will review the terms any redundancy package proposed with a solicitor before agreeing?

And would it be reasonable to point out that training my friend will cost them less than making her redundant/the redundancy pay out?