Wrongful redundancy?

[ElinoristhenewEnid]

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

thanks

I think some people may be forgetting that in this situation the burden would not be on the employee to prove that it wasn't a genuine or fair redundancy, but on the employer to convince the tribunal that the redundancy was a) genuine and that b) they used a fair selection system and that c) they followed a fair procedure. They don't necessarily have to have followed ACAS guidance, but if they didn't, they would have to be able to show that their procedure was at least as fair or good as that guidance and that they had good reason to deviate from it.

From the facts given, I think they would struggle on all 3 points.

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.

Yes that is possible but unlikely. The tribunal will also look at the ease of getting similar jobs in the area etc so they do not pay out to people who simply do not want to work. There are a lot of factors in play here. I've seen many people look to tribunals to right a wrong and the outcome is rarely the justice they seek.

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.

There has to be proof or reasonable doubt that the employees were targeted. That is hard to prove without evidence. All these guys have to do is say that they trialled what looked to be a great idea and it did not work. If challenged that they targeted them because they raised issues, the employers will say that they were grateful for the prompt and dealt with it accordingly.

There are so many factors in play that we do not know. The person involved, if they are committed to getting a resolution, should seek legal advice. Once all the facts are known, they will be able to make an informed decision.

"There has to be proof or reasonable doubt that the employees were targeted."

The burden of proof for a tribunal is 'on the balance of probability' i.e. 51% likely. Civil proof not criminal. It's not beyond all reasonable doubt like in a criminal case.

As Phr says, a lot of employers are advised to settle out of court in these cases. My mother's company (she doesn't own it, she's the general manager) uses an external contracted agency to advise them on their HR policy and legal issues. Every single time there has been a dispute they have been advised to settle out of court, which sometimes they have ignored out of principle. A lot of companies buy in their specialist HR advice from HR consultants and these people and agencies are often quite risk averse in the advice they give, because they're already getting paid. So if your friend or relative has a good case and is happy to go to court it may be worth it as they might get a settlement if the employer doesn't want to. Its a matter of weighing up all the circumstances.

All these guys have to do is say that they trialled what looked to be a great idea and it did not work

No, that isn't all they have to do. Employment tribunals aren't fools. They are aware of the tricks some employers try. In this situation I would expect the tribunal to want evidence that the situation had changed sufficiently to justify re-creating the posts. I would also expect the tribunal to question why the posts were not offered to the ex-employees. At a minimum one would have expected the business to contact the ex-employees to see if they wanted to apply. The fact they did not do so is evidence (albeit not conclusive) that this was about getting rid of certain individuals rather than a genuine redundancy.

I agree that the ex-employees need to get proper advice.

UPDATE person took union advice and decided not to go for unfair dismissal - too stressful and no guarantee of success.

Ironically the person who was awarded the supervisory role having only been previously employed for 10 weeks is likely to be dismissed - it was paying an enhanced rate of pay and now that 2 cashiers have been employed the post is considered to be no longer needed. Obviously that person has no employment protection.

The 2 people made redundant are glad to be out of the situation although still unable to find alternative employment.