Nowhere else to turn with Redundancy

[Guest]

I really hope you can help. My wife is being made redundant while on furlough. She is the only one being selected, even though there are two others with overlapping roles. Her boss has informed her the others weren't selected as they hold different job titles in the Management team, even though they do the same job day to day. The clincher during the consulation was my wife asking if she had returned when the business reopened in June (she has MS and has to sheild. She has a letter), would she be in the same position. Her boss said "Possibly not", but the business had to save money. As a bit of background when she was receiving treatment in Hospital for her disability, the time in hospital was classed as sick leave and not disability leave. She lost some pay and holidays because of this. Also since notifying her boss of her disability she has been excluded from meetings, decisions, and micromanaged. This wasn't an issue prior to being told she had MS.

The stress alone is making this whole process unbearable, and the thought of fighting it to get her job back is tough. She doesn't really want to work for them knowing they are very open about making her redundant due to her disability, but doesn't want them to be able to openly disciminate based on her disability either.

If she openly discusses this with them, and upon reflecting they allow her to have her job back, what position would she be in later if they decide to get rid of her in other ways? Should she stay quiet until they make her officially redundant then mention the discrimination?

Thank you in advance.

[ULA]

In regard to your wife's situation it seems like there are two distinct points, one is the redundancy selection pool and the other is the potential she is being selected because of her disability.

On the first point unless your wife is in a completely unique role then in defining a selection pool her employer should take into account the following:

* They should consider including employees in the pool who undertake the same or similar roles. The roles carried out by the employees in the pool do not, however, have to be identical.
* Employees should be included where they undertake the same or similar roles in different parts of the business or on different shifts, unless there is good reason to exclude them.
* The employer needs to consider whether the work that is carried out by a group of employees is interchangeable? The pool does not need to be limited to employees doing the same or similar work. If an employee can easily carry out the duties of a different role (or perhaps has done so in the past),then the selection pool could be held to be too restricted if it does not include those interchangeable roles.

So if there were other people who do broadly similar roles, even if they do not have the same job title, not including them could potentially mean the selection pool of just your wife is too narrow.

On the second point employers should not select someone for redundancy solely because of their disability and in addition employers are being told under the current circumstances of COVID to think carefully about the process they are going through if they are selecting employees for redundancy just because they are shielding. The issue being is that this could potentially be disability discrimination.

[Stalwart]

Thank you very much, I decided to join the forum to make it easier to reply.

We just had our second meeting yesterday. These have been done over Skype, and as her husband I'm the only representative she has due to shielding.

So again her employer says that her Job (Manager) is being made redundant so no other job roles or people were considered regardless of skills or overlapping abilities, attendence, etc.. The job will be absorbed by one of the Directors who will not always be on site. Her employer plans to "tweak" one of the two other people who weren't considered in the Management team to cover the day to day aspect of the absorbed job role. To me this sounds like her job is still required, and they are going to basicly make one of the other two the Manager (though I suspect they will be called something else). I suspect they can't fire her as her attendence, skills, and performance are well above par, so redundnacy is the only way to do it.

They ended up covering the amendments to the meeting minutes from the consultation (1st meeting) to try and make thier arguments seem better. For instance the point about returning to work in June would have made a difference. The employers new position is "it would definitely not have made any difference". I suspect they are trying to cover some legal aspects of why they are doing things this way, but we have kept a record of all emails/minutes as they initially did minute it would have been different.

They have also covered what pay she would get during redundancy. They've said she will only get 80% of her wage for 12 weeks notice. As my wife has worked for them for 17 years this is the statutory minimum and thus I have read it should be 100%, but haven't found the regulation which covers this yet.

It really feels they are trying to get one over on my wife, both by making her redundant due to her disability, and also by not paying her what she is owed in redundancy notice pay. Being disabled my wife only has so much fight left in her, and the stress of this makes her condition worse which is affecting her daily quality of life.

[ULA]

It sounds like they are justifying the redundancy as part of a restructuring exercise, given what you have said they are proposing to do. They may well have taken some legal advice and are therefore trying to neutralise the previous comments that were directly aimed at your wife's disability despite the requirement for her to shield, as directed by the government on the advice of Public Health England.

The answer in regard to notice pay is not straight forward but can I presume that contractually your wife is not entitled to more than the 12 weeks statutory minimum? The below link is a useful analysis of the situation and I think if you go through it you will understand why I cannot give an entirely clear answer. However given your wife's situation there is a strong argument for the fact that her notice pay should not be at the 80% furlough level.

https://www.outertemple.com/2020/05/...n-on-furlough/

Once you have looked through the link if it does raise any questions specifically on notice then please come back to this thread and ask.

[Stalwart]

Thank you again, and yes my wife is only entitled to 12 weeks notice in her contract. Next meeting is on Thursday so we are currently trying to figure out if we challenge her redundancy package now or on Thursday.

ACAS and CAB both say it should be 100% as well in accordance withe the Employment Rights Act, section 9 para 88.

Your link is also valuable for showing some great examples of the act put into practice.

[ULA]

I would most definitely get your wife to set out why she should get 100% of her salary for her notice period.

I do appreciate that given your wife's condition this is very stressful for her, so therefore if you do send an email to the company setting out why she is challenging the redundancy package now it is not something that she would have to do at the face-to-face meeting, albeit it is virtually. It also gives time for the company to decide how they are going to respond and hopefully you would get that response in the meeting. The alternative is that you/your wife presents the case to challenge and then they, to give due consideration to what has been said, should adjourn the meeting and then your wife could be left waiting until they come back to her.

I would also suggest that you consider either, if you do something in writing in advance or leave it until the meeting, you do indicate that you have had some legal advice on the situation which you have had via ACAS, CAB and on here on the forum. It may just add weight to what you are presenting.

[Stalwart]

Last night my wife replied back to the email with the meeting 2 minutes. There are a few corrections that are needed, and if they don't amend the minutes at least we have record of the issues we raised.

As the redundancy package was also on the minutes it was one of the corrections requested, and we did mention both ACAS and CAB recommend 100% based on the ERA 1996 ss88.

We have our last meeting tonight before she is made redundant and if the opportunity arises I would like to quote some of that document you linked to. Am I able to quote this as the opinion of a solicitor on the subject? So basicly can I use what they said in the last meeting? CAB did inform us that if they chose to only pay 80% we could claim an unlawful deduction of wages, but I would like to get it sorted before then.

Lastly, every meeting we have had has opened up with a statement that no recordings are allowed, yet the minutes always seem more detailed than those that would be written down at the time. It seems like they are recording them, and then changing/omitting certain aspects to put them in a better light. Does this matter?

Thank you again.

Just in addition I have found this link which also states a Web chat from HMRC has confirmed that they expect the employer to top up the furlough rate to 100%, but that they can claim for 80% back.
https://www.stevens-bolton.com/site/...rs-dogs-dinner

[ULA]

Sorry I may have missed you but I have been at work all day.

Daniel Barnett is a leading employment and commercial barrister so there is not issue with quoting relevant pieces from his article.

Just wanted to let you know in case this post is in time.

Please come back and update us as to how it goes

[Stalwart]

Thank you again, and I appreciate the advice even if you feel it's too late.

In the end we didn't need to use any of our research on the subject of pay at 80% during the notice period. Simply informing the company that we had been advised by ACAS and CAB appeared to work so they have now changed the redundancy package to 100%, though as a "Favour" rather than a requirement. Really doesn't matter to me, as long as the outcome is the same.

My wife has now been officially made redundant and will remain on furlough during her notice as per her employers request. Keys and uniform have been handed back in, and official notice hand delivered last night. Last day of employment will be the middle of October and though I objected after the meeting, her boss said she is free to start another job before the 3 months is up. Her official words were "We can come to an agreement". Most likely this will be surrendering redundancy payment so I told my wife to hold off, or inform a prospective employer she can't start until after her redundancy date. Her employer would want nothing less than avoid paying the final redundancy payment.

My wife finished the Skype meeting by emotionally restating that she thinks the selection was unfair and that her disability did play a role in the redundancy. She mentioned the 17 years she supported the business (sometimes without pay), on weekends at fairs and shows, taking home work when machines broke on site, working on marketing during lunch periods to promote the business in shops. She mentioned missing out on our childrens plays, recitals, and family meals due to work meetings and training courses. It shows that no matter how good you are in a job or how much extra you do, those things don't count when they want to get rid of you. Almost half her life dedicated to a company who no longer thinks her contribution is worth it which to her feels like half a life wasted now.....anyways I digress.

She has 7 days to appeal the redundancy with her employer (as per letter hand delivered), but not sure if this will do any good as they have already declined to look further into redundancy bumping, voluntary redundancies, looking for other positions, the selection process (They said it would be unfair if they selected others at this stage in the process), or looking into the fact that my wife was selected based solely on her Shielding with a disability. Every response is either they didn't look into it, or they don't think they need to look in to it.

If we decide to appeal I will let you know, and thank you again.

[ULA]

However the company want to portray it at least they have agreed to 100% payment of notice pay.

Although legally a company does not have to offer the right of appeal on redundancy as they have done so you may want to consider doing so, particularly if your wife is considering making a claim against her employer - it would look better if she had exhausted all internal procedures.

However, if your wife is now just looking to draw a line under everything, then as you say, there may not be much point in putting herself though an appeal.