Unfair Dismissal?

[TheOneSwan]

Writing for a family member (who doesn't use MN but I want to help).

Family member was called in to a meeting yesterday and was told he was getting offered a demotion due to "poor performance". The poor performance is regarding a deadline before Christmas that family member (FM) didn't meet. However, this poor performance is justified. FM has raised the issue of the ordering/delivery department taking too long many times previously (which he can prove as it's in writing) and it's never been rectified. FM told boss when given the deadline that it was impossible to meet due to the ordering/delivery process.

FM immediately called HR into the meeting (they were alone before that) and started defending himself:

• FM had no prior warning of poor performance.
• FM can justify the poor performance as he had informed the boss of the long ordering/delivery issue - that he has no control over - multiple times during meetings and again when informing the boss the issue would prevent him from meeting the Christmas deadline.
• Boss has already hired his own FRIEND from his previous company to take on FM's job. He had already given FM's job to a friend days before this meeting even happened.
• Boss is new and, since starting at the company, he has hired three of his friends from his previous company.
• FM is in his 60s. Boss and his friends are all younger. Potential age discrimination? How can boss justify replacing FM with his younger friend?

FM was given the option of "take the demotion or you're making yourself unemployed". So take the demotion or that's him quitting (they won't fire him).

FM has been working there just over a year on a rolling and now permanent contract. With under two years service, he probably doesn't have any rights but Citizens Advice does say this: "(under 2 years) you probably can’t make a constructive dismissal claim, except in a few situations"

Could this be an exception? He can prove he's being pushed out in favour of the boss's younger friends coming in. His position had already been filled before the meeting happened with I just find insane.

*This link says you can't be demoted for poor performance if the poor performance is justified (is it justified - he has raised the issue multiple times) - Can you be demoted at work? (And how to deal with it) | Indeed.com UK

If he is in a union he will be able to get some advice, but I don't think it is hopeful as he has been there less than 2 years.

At less than 2 years he’s on a road to nothing with it unfortunately.

In this situation it's important not to resign, constructive dismissal requires 2 years working for the org.

However unfair dismissal requires only 1

landaulaw.co.uk/demotion/#:~:text=If%20there%20is%20no%20clause,to%20come%20to%20an%20agreement.

Basically unless your contract says they can demote you without permission they can't do it.

It's an unfair change to contract and I think would win in a tribunal. If they dismiss due to what's described it's likely to be an unfair dismissal

I'm not a legal person but I would suggest some investigation before making a decision

Contact ACAS we've found them very helpful recently

Please get FM to call ACAS right now. They give really good free advice.

Unless he has a protected characteristic and he thinks they've done this because if his protected characteristic he's wasting his time fighting this with under 2 years service.

He needs to use his energy to find a new/better employer.

Is it not 2 years for both
Labour propose making it a day 1 right but not law yet
2 year period does not apply in discrimination cases

Thank you. I've found a few things of interest too. A demotion is surely the result of a disciplinary procedure except there wasn't one. The company didn't even follow it's own policy regarding disciplinary action - FM just walked into a meeting one day to be told he had to choose between quitting or being demoted.

There was no disciplinary hearing and a decision had already been made before he was even informed of his apparent poor performance (which, again, is justified due to another department). They had already hired someone - the boss's friend - to replace him.

Could it be that, with less than two years, we could get them for Constructive unfair dismissal or automatic unfair dismissal? This company have failed to follow their own disciplinary procedure, failed to follow the acas code of practise, failed to inform him he can appeal, and have given him no option other than accept a demotion or resign. He can prove boss's friend was hired before he even knew about the (justified) performance issue.

This advice is incorrect and does not accurately reflect the legal position.

Unfair dismissal requires two years employment - why are you claiming that it only needs 1? Any unfair dismissal claim requires two years unless it is realted to a protected characteristic. Although the OP mentions an age difference, that is not enough to show discrimination - the relative would have to show this action was taken because of their age, and it wasn't - it was taken becuase of their performance. There may or may not be a good reason for that, but at less than two years, it is irrelevant.

On that basis they can't technically force you to accept a demotion - but it's all irrelevant as they can just sack you if you don't accept it.

He has less than two years service. On that basis the rest is moot. They may not have followed procedure but he cannot hold them to that. He cannot claim unfair dismissal of any kind - they all require two years service.

The ACAS code of practice is guidance - they are not required to follow it, and without two years service he has nowhere to challenge the fairness of any of this.

I am sorry, but he quits (not recommended), accepts the demotion until he can find another job and move on, or he gets sacked. It's not fair but it's lawful. His only hope would be if he could show discrimination, but I honestly don't think he can based on what you said.

Apologies it appears I got incorrect info from google AI that stated the timescales for unfair dismissal was 1 year rather than 2

AI must be stuck in the 90's. I think that was when it was last 1 year! I do recall it being 1 year twice in my life, but I am old now!

That'll teach me to trust AI, I assumed it was a recent change as it was always 2 years that I could remember. I should have fact checked.

I'd still resist resigning personally, it's easier to get a job when you've already got a job

I agree - which is why, in their shoes, I would have to suck it up unless I didn't need an income. It isn't "fair" but it isn't unlawful in that it can't be actioned. If the manager wants rid of this person anyway it is also an incentive to write a nice reference - if they leave then they can write anything that is "true" including the fact that they got demoted for poor performance. Technically they could do that if they stay, but there's less incentive if they want them gone.

It is possible that FM could case for Age related discrimination but you need proper legal advice to decide if its worth pursuing that

How long until he passes the two year mark?

OP says just over a year there so 11 or so months.

Oh. I hadn’t realised that was the rolling contract and permanent contract combined.

He needs to stay put and not give them a decision until he’s spoken to ACAS. He could also ask them to draft an offer that he can put to a lawyer (at their expense). It is quite normal for employers to pay for lawyers in these circumstances. The threat of a lawyer getting involved might give them food for thought too.

If your family member had been there 2 years, it would be constructive dismissal if they demote him without his consent, and it would be unfair dismissal if they sacked him for refusing to consent to demotion. Unfortunately, as he has only been there just over 1 year, he does not have any protection against unfair dismissal unless he is dismissed for a discriminatory reason. There are some other situations in which an employee is protected, but unfortunately they don't apply here.

He is protected against wrongful dismissal. This applies when the employer breaches the employee's contract. Typically this happens when the employer fails to give the contractual notice period or notice pay, but it can also apply if the disciplinary process is contractual and the employer fails to follow it. For this reason, most employers make sure their disciplinary process is not contractual.