Is this legal?

[LemonBreeland]

My DH has been working for a company since September. Last week they told him that they were letting him go due to having too many manager level staff, they admitted that this was because two managers who had previously left the company were coming back. There was no issue with his work at all.

We assumed he had no comeback with this as he has only been there a few months, but another member of staff who was let go at the same time has contacted a union and they have said she has a case (different circumstances) and so doe DH. I'm not convinced, but if we could get some extra financial compensation out of them it would help while he looks for something else.

I'd contact ACAS for some advice. I think it would depend on whether one of the two previous managers returning were coming back to do the role that you DH is doing currently?

I'm certainly not an expert, but they can't claim they're making him redundant if they're hiring someone else to do his job can they?

If one of the other managers is coming back to do your DH's role then what they have done is illegal. They had no basis to get rid of your DH if he was doing the job well and just deciding to let him go in favour of previous employees isn't a good enough reason. If they are getting rid of people, they should have a redundancy process. They can't be letting people go and taking on new staff!

Is he not still on probation? Either way at this time they can let him go for any reason unless discriminatory. Sure he should take advice, but Di expect the company to fight it.

Just to echo what the previous posters have said, it's the role that you make redundant not the person so if someone is coming in to do the same role then that's an issue (they may change the role slightly to get around that, though - that's my suspicion, fewer managers but with more responsibilities).

I've consulted ACAS a few times, every time I've been told the same, unless the reason is discriminatory (ie pregnancy, disability etc) then, with under two years service you have very few rights. It's worth a conversation but don't get your hopes up, I hope he finds another job soon.

If one of the other managers is coming back to do your DH's role then what they have done is illegal

I'm not sure this is completely true, it's not that simple. When he's been there less than six months.

The op has not said he's being made redundant. She has said they are terminating his contract. Two very different things.

He's only been employed since September so has less than 2 years service so unless the reason the role is ending is because of a protected characteristic, or because he has made a protected disclosure, it is not illegal as he doesn't have the right to bring a claim for unfair dismissal due to his lack of service.

Since he's been there such a short time maybe he's still on probation and he's not up to the job.

He has no comeback unless he thinks him being let go is due to an "automatically unfair" reason. These are generally to do with pregnancy, taking maternity, paternity, parental etc leave, trade union activities and whistleblowing. There is a list on gov.uk

People really do need to read up on employment laws. You can't just let someone go for any reason when they have less than 2 years service. It clearly states on the UCAS website that all employers must use a formal dismissal process for any length of service. Sure you can't take your employer to an employment tribunal for less than 2 years service but you can still fight it. If more than one person feels an employer is being unfair with how they dismiss people and it's found that they are not following the law (you need to use a redundancy process for all staff, even the one's that have been there for less than 2 years unless you used the formal dismissal process mentioned above) they can take a case for that and not necessarily an unfair dismissal tribunal.

In short, unless the employee has gone through the company process of verbal warning, written warning or commited gross misconduct, they need to make that person redundant or pay them off if that's the term they want to use for an employee with less than 2 years service.

Most people think they can't do anything unless they've been there for 2 years but they can. I used to be a manager and the higher management tried to just let someone go without using the formal process. The person had been there for 11 months. I read up on it and told them it was illegal, they had to make him redundant using the proper process of informing everyone redundancies were happening and base it on something and not replace him or use the formal dismissal process. They quickly shit themselves and rehired him

Thanks all. We didn't think he had any comeback, it is morally appalling imo but as I thought it is legal.

It is the hospitality industry and they are the worst for this.

Cross posted Yappity. Maybe we should go to citizens advice.

@YappityYapYap

they can take a case for that

What claim exactly are you pleading in the employment tribunal?

I hope you are not employed in the legal profession Yappity as what you state is totally incorrect. ACAS give a lot of best practice information that isn't actually law. An employee with less than 2 years service absolutely can be let go for no reason unless it is "automatically unfair". They just need to give one weeks statutory notice. It is true that some employers MAY have a contractually binding redundany policy that must be followed or the employee can sue for breach of contract but most employers will make the policy non contractual or state it isn't applicable in the first two years of service.

They’re not making him redundant. They are terminating his employment and hiring the person who previously did the role back, from what the OP has said. If they are making him redundant, then there’s a best practice procedure they are strongly advised to follow but it is not a legal requirement from what ACAS said. Just “frowned upon” and taken into consideration, should you try to take it to tribunal. Not illegal, however,

In short, unless the employee has gone through the company process of verbal warning, written warning or commited gross misconduct,

What are you talking about? Not on probation they don't, and I'd assume he's on probation.

And yes they can just close it. He's got no leg to stand on after five months.

@YappityYapYap

Sounds like you need to do some reading yourself because what you’re spouting is completely incorrect.

OP, assuming there is no contractual dismissal process that applies, and assuming he is paid his holiday pay and notice pay and that there is no discriminatory or other statutorily unfair reason for dismissal that would waive the 2 year qualifying period for unfair dismissal, then I’m afraid your husband is unlikely to have any legal recourse. its very common for short service dismissals to be done without a procedure.

Thanks all, we thought that there was no recourse. Shitty way to treat employees, but nothing we can do.

He has a couple of interviews lined up so hopefully we will be okay soon.

Unless there is a protected characteristic involved or other automatically unfair reason, they don't even have to give a reason for dismissal during the first two years. Technically they are supposed to follow a process of inviting him for a hearing, etc etc, but there is effectively no recourse during the first two years if they don't do that, so there's no reason to. As long as they give him sufficient notice, or pay him in lieu of notice, they are fine.

It's rubbish, but it's not unlawful.