Can any legal types help with question about redundancy?

[peachsmuggler]

I did not return to work after ML as applied for 3 days a week and was told I could not as there was too much work and the other 2 days could not be absorbed. I therefore resigned and my contract ended a couple of weeks ago.

There are now redundancies in the firm. My question is this. If they decide not to fill my post, can I do anything about it, i.e. was this constructive dismissal? All speculative obviously at the moment but would not be surprised if they decide not to fill my post.

You know, I can normally help on thngs like this, but in this instance I really don't know the answer.

My first instinct is to say you applied for part-time wok and after it was refused you chose to leave, therefore it cannot be constructive.

BUT if they then go on to make your old role effectively redundant, then it appears that the reason they turned down your request for part-time work was not true, and in such a circumstance, if it can be shown that your role could have been reduced and they decided not to do this, then they may be guilty, but of indirect discrimination rather than constructive dismissal.

Do you have their reasons for refusing your request in writing? And did you go through an appeals process before resigning?

Yes I do. Their reasons were inability to reorganise work among existing staff and inability to recruit cover for the other 2 days. Yes also had an appeal.

This isn't constructive dismissal. Refusal to amend your terms and conditions isn't a fundamental breach of your contract, it's just not changing your contract as you are requesting. If you decide to resign because your request hasn't been agreed to, that's your decision - your original terms and conditions still stand and haven't been breached by your employer.

However, if a refusal was not justified, it could be indirect sex discrimination. After appealing a flexible working refusal, you can take it to a tribunal but the tribunal has no say over whether the business grounds were justified or not, and can only make the employer consider the case with the proper information and using the proper procedure. So a complaint about the business grounds not being justified would have to be sex discrimination.

If you were to claim some kind of sex discrimination you would usually have to bring a grievance first and there are tight timelimits, normally 3 months after the event took place.

Just because your employer is now making redundancies doesn't mean that actually it could have accommodated your request, and you would have difficulty demonstrating that they could just because of business decisions taken after you have left.

Thanks. All good info. I think my worry was they knew they were going to be making redundancies at the time and never intended to replace me, but refused my application on the grounds that there was too much work for me to do it in 3 days.

Well, I think it will now hinge on the exact situation and also what happens with regard to the redundancy process, but in your situation I think it might be worth finding out as much as you can about what they now do with your department and maybe speaking to a solicitor. You only have 3 months in which to lodge a claim but I am not sure in this instance whether ot would be 3 months from them denying you flexi work or 3 months from them changing your vacated role anyway.

I should emphasise that I am not really sure what might happen here - even if you potentially have a case (and that in itself is a big 'if') the company may well argue that economic conditions changed in the period between denying your request and announcing redundancy plans. Definately one for an employment lawyer and only then if there is some very clear-cut evidence that their refusal for part time work was quite clearly not for the reasons stated.

After writing all of this I now see flowery has posted too - she is more the expert here than I.

Well, I think it will now hinge on the exact situation and also what happens with regard to the redundancy process, but in your situation I think it might be worth finding out as much as you can about what they now do with your department and maybe speaking to a solicitor. You only have 3 months in which to lodge a claim but I am not sure in this instance whether ot would be 3 months from them denying you flexi work or 3 months from them changing your vacated role anyway.

I should emphasise that I am not really sure what might happen here - even if you potentially have a case (and that in itself is a big 'if') the company may well argue that economic conditions changed in the period between denying your request and announcing redundancy plans. Definately one for an employment lawyer and only then if there is some very clear-cut evidence that their refusal for part time work was quite clearly not for the reasons stated.

After writing all of this I now see flowery has posted too - she is more the expert here than I.

Thanks! I guess I can't do anything anyway until they actually don't replce me (which they may do) at which point the 3 months will be up. Cheers anyway!