Do you think this may be an unfair dismissal?

[Rhyia]

Hi All,

I'd appreciate your opinion on the strength of a case for unfair dismissal.

Background
Company had two projects (1 and 2). Project 2 was cancelled which required a reduction in headcount.

My immediate team consisted of one manager, one deputy and two roles beneath (Role A and Role B). The Manager/Deputy were capable of doing both roles. Both roles A and B did work that was required by 'regulations'. They were both at the same grade and both booked to Project 1 and Project 2. They were different roles but not specialist. They required similar training.
With the cancellation of Project 2 the Manager/Deputy workload reduced. Because the company wanted to keep their roles, a person from Role A or B had to go.

Instead of pooling the two roles, it was decided to keep Role B and make Role A redundant. Role A work was then subsumed into the Manager/ Deputy roles.

This was despite the fact that Role B workload had reduced due to the cancellation of Project 2. Whereas Role A was not affected by the cancellation (same workload required independent of number of projects).

The reason given for selecting one role over the other was not workload but the reason the roles came into being.
Role A was hired 6 years ago because the increase in project work meant they wanted a dedicated engineer to do the regulation work.

Role B was hired 4 months prior because new regulations came in that meant we required a new role to cover the extra workload. However, the need for that role was based on the project workload (which has reduced).

The reason given for not pooling Role B was that it was 'a new role brought in by regulations that was negotiated with the customer'.

Essentially, despite working under the same regulatory framework, Role B was treated as a role, with specific work attached to that role. It was also treated more favourably because it was new. Whereas Role A was treated as work that was not attached to a role. Even though they were both required by regulations and both workloads were required by the customer (Role A work would've been negotiated with the customer in an earlier contract).

Had the roles been pooled there would've been a good chance of the person in Role A being selected based on 6 years experience, training completed and also that Role A had done some of Roles B work before. The person in Role B had only been employed 4 months, did not have training and hadn't done Role A work before.

On principle, I know that there is not much to be gained from going to an employment tribunal. But despite this, is there a case that Role A was unfairly dismissed?

Really sorry for the long post.

Look up redundancy 'bumping'

@Batmanisaplaceinturkey
Yes, I understand redundancy bumping. But this is different. They're redistributed Role A into two other roles, whilst artificially protecting Role B.

Possibly. Likely to depend on the detail though. Are they two different job titles and job descriptions?

Can decide which job stays, so it's down to whether person A meets all the requirements of job B, or whatever these are if it's a different role and job description.

"They were different roles but not specialist. They required similar training."

It isn't very easy to read your post without you giving job titles and descriptions of the role but this (above) is the key phrase in your post.

If they are different roles then in most cases they don't need to be pooled. The employer just needs to be able to give a logical reason for the pooling. If that reason is "we need a waitress but we don't need bar staff" then the fact that the incumbents in the role could technically do each others role is irrelevant. What is relevant is whether the role they are contracted to do will remain in the structure. Waitress is in a pool of one even if she has been there longer and could technically work behind the bar.

If you are both project planners but working on two different projects then that might be different.

Impossible to say without the detail. As a general principle companies are allowed to organise as they see fit and decide how they pool as long as it’s not bizarre or unlawful discrimination.

The business is legally able to structure as benefits the business. And if the roles were different it’s fine. I don’t think person a did have a chance if they were pooled, as the company clearly wanted to exit that person.

It's a bit complicated to explain the exact job titles so I'll do an analogy to try and simplify it.

Imagine a fish shop that has two cooks who can both fry cod. They have one corporate customer who makes a large order each week (project 1). The customer then adds another order (project 2). Because of the second order they have associated tasks that mean they can't focus on frying cod. So they hire a cod fryer.

Then 6 years later, new fish shop rules dictate that you must also have the option of frying haddock, in addition to cod. The two cooks can fry haddock and the cod fryer helps occasionally as well. However the two cooks and cod fryer don't have the time to dedicate to haddock frying so they hire a haddock fryer.

Then the customer cancels the second order. Because of this, the two cooks have spare time. So now they can do some cod and haddock frying. But they have to get rid of one of the fryers to reduce costs.

Instead of having one role and calling it cod/haddock fryer and pooling the cod fryer and the haddock fryer together, the fish shop owner decides to get rid of the cod fryer role and absorb that role back into the two cooks roles.

The reason given that, the cod fryer was originally hired as a result of an increase in cook project/order work. Whereas, the haddock fryer was introduced as a result of a new fish shop rule.
Therefore, with project/order cancellation the cod fryer has to go.

It has nothing to do with a restructure of the cooking. It only has to do with the how the roles were introduced.

The cod fryer was experienced in the role, had done all the training and was well thought of by the cooks.
The haddock fryer was not experienced in frying haddock, still had training to do and had only been in the role 4 months so was still on probation.

If the other person is on probation, are you sure they don’t plan on letting them go too?

Has B been there 4 months or 4 months prior to second project? If role A is being made redundant it does not sound like unfair dismissal. Were A and B paid and graded same?

You need to take legal advice.

On this particular hypothetical scenario it's way too confusing. Assuming that cod frying and haddock involve slightly different skills/tasks rather than everyone just being fish fryers frying all types of fish, it doesn't sound like unfair dismissal. They are not obliged to change the contracted role just because an employee has the capability to do a job that remains. If however the employee suggests bumping then the employer should consider it (although doesn't have to agree). So if the cook says "well I can fry haddock" then that should be considered. However it isn't clear at all because the cook may well be paid more than the haddock fryer or the employer might think the haddock fryer is better at haddock frying than the cook would be if the haddock fryer was bumped. The cook (or the cod fryer) doesn't have the right to take the haddock fryer's job just because they have been there longer.

To give a slightly clearer example. If an office employs secretaries in every department and the accounts department no longer has a need for a secretary it would be possible just to put the secretaries in the accounts department in a pool without adding in the secretaries in the marketing department and the logistics department. In theory they could all do the job in each department but that doesn't mean they all have to be pooled.

They could request bumping though.

If role A and B have different job titles and role specifications, the. there was not discrimination. The employer has determined which role tasks can be consumed into the planned target structure and executed redundancy based on that decision.

But if they do have the same job title and role specification, then they haven’t followed redundancy process and as a result this could be unfair dismissal.

How they were hired, how experienced they are, is largely irrelevant.

How they were hired is relevant because that was the reason given for retaining one role and making the other redundant. They were very clear about this. It was nothing to do with a restructure.
In another team completely different roles were pooled because they wanted to give everyone a fair chance.

You need to take legal advice. I am an employment lawyer. Hermioneweasley is also an employment lawyer. We have both said we cant advise properly on the basis of this information.

Does Role A person earn more? It is likely a cost saving exercise. Or they aren’t as popular with those in charge & it’s a way to get rid of them legally.

Absolutely agree with all this

Thanks for your reply.
I'll try using your secretary example. My scenario is that all the secretary roles are still required in the accounts, marketing and logistics departments. However two senior secretaries who oversee all three roles and are capable of doing all three roles, have both lost half their role. Therefore, the business has decided to select the accounts secretary role to split into two and give it to the two senior secretaries. Making the person who held the accounts role redundant.

The reason given is not because of intentional restructuring or because the accounts secretary was disliked/bad at their job. It was because of the reason the secretaries were hired.

The equivalent in this case would be that originally there was only an accounts department and the two senior secretaries did the accounts along with project work. When a new project was introduced, their workload increased so the company hired an accounts secretary.

After many years the marketing and logistics departments were created. Secretaries were then hired into those roles and the senior secretaries oversaw all those roles. All three secretaries reported to the two senior secretaries.
Then the new project was cancelled reducing the senior secretaries workload.

They had to take work from the secretaries in order to keep their roles. However, because the logistics and marketing secretary roles were created because of the introduction of the two new departments, those roles were protected. But the accounts secretary role was not protected because that role was originally brought in because of the new project work the senior secretaries had to do. Therefore, the cancellation of the new project meant that the roles had to go back to how they were before the project was introduced.

However, all three secretaries booked their time to the new project. The cancellation of the new project did not affect the accounts secretary role but it did reduce the workload of the other two secretaries.

But yes, I'll seek legal advice as you have advised. Thanks again for taking the time to reply to me.

This particular example is unlikely to be unfair dismissal. The accounts secretary role is no longer needed and there is capacity with the senior secretaries who will pick up some of the work remaining when the account secretary role is deleted. The business is entitled to decide that it wishes to retain the senior secretaries (who do a job at among more senior level) rather than the junior role.

It is frequently the case that a junior role is removed and residual tasks are absorbed within other roles. That doesn't mean the roles all get pooled. They are different roles. IF the roles were pooled (which they don't have to be) then the members of the pool would be measured against the requirements of the remaining role (senior secretary) and so the junior person is likely to score the lowest and be made redundant since they don't have the senior secretary skills and experience). So in most cases this is a futile argument since the employer will simply conduct a hypothetical desktop selection exercise and show that the junior role would have been removed anyway even if they had pooled.

But as I have said, you need to take legal advice since I am advising on a basic hypothetical secretary situation and you are employed in a different role with different factors affecting it. In many cases an employer will ask you to sign a settlement agreement and will pay circa £400 plus vat for you to have the agreement certified by a solicitor. At this point you can explain the situation and receive some limited advice on it. You can also take advice sooner but are then likely to have to pick up the tab yourself.

I don't feel like I'm getting my point across properly. Maybe the secretary example was a was a bad one.
I'm not disputing that a junior role can be absorbed into senior roles. I wasn't expecting the junior role to be pooled with the manager roles.

It's about the two junior roles below the managers roles.
Basically the original junior role was employed first. Then that role expanded so another junior role was employed (because the first junior role did not have the capacity to do extra work). Their duties were split so they were given different titles.
The work in the roles were still required. Had they both been employed at the same time, the two junior roles would've been pooled.
The only difference between them is the reason they were employed.

It's in engineering so this scenario must happen many times.
For example, if you apply for an engineering role, there are many reasons that the role has become vacant, it may be because the previous incumbent has been promoted or moved on to a new piece of work, or because workload has increased due to new contracts, etc.
So imagine being employed to do an engineering job which became vacant because the previous incumbent got moved on to do another contract. Then many years later, the workload increased due to new engineering regulations so the team employs another engineer.
Both roles have same grades and similar skills.
But along comes redundancy and the original engineer is let go for no other reason than the job they applied for was made vacant due to the original incumbent moving role. Whereas the second engineer is safe because their role was vacant because workload increased.
Rather than, there are two engineers, both doing required work, unfortunately only one can be kept, so let's pool them and pick the best candidate. As was done in other departments.

But yes, I'll try and get some legal advice this week. Thanks for helping me.

I think you are getting uour point across, it’s jist you don’t like the answer.

Not at all. I already know that companies can restructure and absorb roles as they see fit. I didn't realise that they could make roles redundant purely because of why the roles applied for were originally made vacant. I was just making sure that was the case. But I'll get legal advice just to confirm, as Ciri has suggested.

I’m sure if pushed they wil provide a deeper businsss justification than that. So now you’re saying it’s not you dispute whay they’ve done isn’t correct, you know it is, you also know they can pool like this, but it’s jist they said it was based on how the roles were applied for.

so basically one applied to do both. One applied to do only one. And the one which applied for you just one was made redundant.

You need to speak to your union. They will have experience of similar situations,

I did 😭. They've been looking at it for months. They knew something wasn't right about it because they asked for more information which I provided. However, they are impossible to get hold of and time is running out. So, I'm at the point where I have to decide whether to go it alone. I can get legal advice but I can't afford to hire a lawyer as to be honest, it wouldn't be worth it.

People should do theIr research when deciding to join a union. I decided to join one of the largest but I've since looked at their reviews and it seems my experience is not uncommon.
I'm going to leave the Union and instead put my subs into a savings account for any future issues. Then I can use that money to hire a lawyer.

We've been through consultation, the logic was questioned and an alternative was suggested. But it was rejected because of how the roles came into being. They kept reiterating this.

No, I'm not saying I think what they've done is correct. I would think it was correct if they had said 'we've reviewed both roles and decided that for future business needs one role is more crucial than the other for various reasons and therefore your role is redundant'.

But they haven't reviewed the work or future business needs. Because they made the decision based on why the roles were recruited. The roles could be nearly identical and they would've chosen the other role to keep.

This isn't me being biased, I was told this by managers as the decision was made quite high up. They were as confused as I was.

I may have to accept that I will be forever confused by this and just let it go 🤣.

Aren’t union subs about 2o quid a month? You’d need to be saving many years before it paid for a lawyer.