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Redundancy, length of service, consultation & unfair dismissal.

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  • Redundancy, length of service, consultation & unfair dismissal.

    Hi All,

    I have 3 questions all relating to the same redundancy, and it's beginning to fry my brain trying to establish the legality of it.

    [-----------1-----------]

    I was recently made redundant and told that I would receive no payout because my length of service was only 16 months.

    The situation was rather complicated, but I will try to simplify it:

    I was employed on a fixed-term 18-month government scheme called a Knowledge Transfer Partnership (KTP) which involves working with both an SME and a university. In my case the SME contributed 2/3 of my salary, while a government grant provided the other 1/3. The administration was all handled by the university; meaning that they received payment from both parties and handled my payroll/holidays/sick pay etc. However, I also had to sign a contract with the SME and was based at their offices performing work under their direction and for their benefit from 9-5.

    At the end of the contract (Sep '10 - Mar '12) I was offered a permanent position with the SME. I received a my p45 from the university and signed another contract with the SME. I was made redundant at the end of July 2013.

    Do I have a case in saying my length of service was from Sep '10 - Jul '13?

    [-----------2-----------]

    I began working for the SME on the 1st April 2012 and I can provide proof of this. However, this was unpaid work and my paid employment did not officially start (including contract signing) until the end of April.

    Does the unpaid work count as employment? (This is important because the law changed on the 6th April 2013).

    [-----------3-----------]

    I was made redundant with immediate effect (i.e. informed and then ushered out the back door on the same day) and told the company were cash strapped and that my position was no longer required. There was no consultation, no analysis and the company had recently employed a consultant who performed very similar work to me. In the preceding days the MD of the company had also made some highly unprofessional remarks (via email) to me regarding my performance of which I complained to my manager. I have latterly discovered that my assistant (who earns half the amount I did) is now performing at least 80% of the responsibilities that were part of my role and that the company employed another member of staff just 3 days after my departure (who also performs similar tasks).

    I know already that the non-consultation is illegal, but do I have grounds for unfair dismissal?

    [-----------------------]

    Phew! Thanks in advance for any advice.
    Tags: None

  • #2
    Re: Redundancy, length of service, consultation & unfair dismissal.

    Originally posted by Mojai View Post
    I know already that the non-consultation is illegal, but do I have grounds for unfair dismissal?

    [-----------------------]

    Phew! Thanks in advance for any advice.
    Hi Mojai, & welcome to Legal Beagles.

    To address this bit, I'm afraid you're not completely correct.

    Whilst it would be correct to say that that is usually the case, there is a 'defense' known as 'futility', in that the usual course of practice would be for a consultation to take place, but if the employer can convince the ET that it would have been futile to do so, the decision not to consult would not be unfair.
    The authority for this is Ashby v JJB Sports Plc UKEAT/0114/12

    It is, however, an exception which proves the 'Polkey' rule, that consultation should take place.
    (Polkey v AE Dayton Services Ltd [1987] IRLR 503)
    Last edited by charitynjw; 30th August 2013, 05:38:AM.
    CAVEAT LECTOR

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    gets his brain a-going.
    Phelps, C. C.


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    The last words of John Sedgwick

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