Made redundant, they are advertising for my job before and still are after.

[trufflestu]

Re: Made redundant, they are advertising for my job before and still are after.

I want a good reference out of it is all I want!

My ex company doesn't have a HR department to appeal to. I'm thinking I may have to write a grovelling letter to my Director along the lines of wanting closure to the issue and requesting a nicer reference going forward as I have financial commitments that I need to attend to, and apologising for my misunderstanding of the situation.

I've looked in my employer handbook, and there is a nice caveat saying that poor performance, sickness and redundancy aren't covered by the disciplinary procedure.

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

OK. I am obviously missing something here. I don't understand where the "nicer reference" and "misunderstanding" are coming from. As I read where we were: you were made redundant; you say that they replaced you immediately; and that the redundancy was a sham. Now it appears that you aren't getting a "nice reference", there is something to grovel about, and I am wondering whether saying this was a redundancy when it was not was actually about the employer providing a face saving exit for you???

It tends to be the case that inaccurate and less than useful advice arises out of incomplete versions of events - is there anything you'd like to add to your account that explains the comments in your last post?

[trufflestu]

Re: Made redundant, they are advertising for my job before and still are after.

OK. I am obviously missing something here. I don't understand where the "nicer reference" and "misunderstanding" are coming from. As I read where we were: you were made redundant; you say that they replaced you immediately; and that the redundancy was a sham. Now it appears that you aren't getting a "nice reference", there is something to grovel about, and I am wondering whether saying this was a redundancy when it was not was actually about the employer providing a face saving exit for you???

It tends to be the case that inaccurate and less than useful advice arises out of incomplete versions of events - is there anything you'd like to add to your account that explains the comments in your last post?

Hi Eloise01

They have written back to my appeal letter stating it wasn't a redundancy as I had thought, but that in fact they had dismissed me for poor performance.

In my meeting they didn't use the words redundancy or dismissal or sack, so I have made the assumption that they have made me redundant, based on the conversation had when in fact what their reply letter says is that I was dismissed.

I'm concerned about what my reference will say from them based on them now saying it was a dismissal.

I really don't know what to do or if there is anything I can do as prospective employers will always want a reference from your most recent employer.

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

Ok. So please explain to me how you failed to notice a performance related process and dismissal and why you assumed it was a redundancy when absoliutely nobody mentioned redundancy to you? In detail please. Because everything I told you previously is now so much garbage - they sacked you, you weren't made redundant and right now you have no case to argue anything! So we have to go right back to square one and work out whether the dismissal was likely fair. I want every piece of information you have - whether you think it important or not.

[trufflestu]

Re: Made redundant, they are advertising for my job before and still are after.

This meeting was the first I knew of any performance issues. I have received no verbal or formal or written warnings from my ex employer with regards performance. No issues were highlighted in my reviews which I had at 6 months, 12 months, and 18 months.

I wrongly assumed it was redundancy, as the company said they were letting me go, I took this as being made redundant, I have never been made redundant or dismissed previously from any employment so had nothing to compare either to, the company however was talking in general terms with everyone that redundancy was a possibility within the company.

I have no physical information, I have received no letter outlining the reasons for dismissal, other than the letter now received when appealing my redundancy!

The received letter states that my dismissal "was purely down to your performance which has been discussed with you on numerous occasions in the past" "Also discussed at the meeting and a previous meeting with your line manager you admitted you were struggling to grasp the new element of your job which is a fundamental part of your role"

I admit I had spoken to my line manager with regards I was struggling to grasp the new element of my role, but it was something that I believed I could overcome with time and didn't see it as a problem going forward and I said that to him.

The new element is my company had acquired another company who specialise in glazing, which I was now to incorporate into my role. I was sent on a 2 day training course to learn how to use the software for the glazing and I was then expected to use the software and learn as I went along, asking questions as i went of the people who had come down from the glazing company, and likewise they would ask me and the rest of our team questions about our element of the works.

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

Right. Well your idea of writing a letter to get a nicer reference isn't really a flier here. The question is, was this fair or not, and the answer is going to have to be that it depends on who a tribunal decide to believe. You say that you have had no discussions about poor performance and are not aware of any issues being raised with you or any previous warnings about performance. Your employer says exactly the opposite. I'd like to say that I believe your version implicitly, but I would have to say that if someone can entirely miss the fact that they have been dismissed and think they have been made redundant when the word redundancy was never once used, then it is not beyond the bounds of possibility that you have missed other things too! I am not saying that to be harsh, but just as an observation of fact. Your manager may have had meetings with you and may have discussed poor performance and you may not have entirely got "the message".

Legally speaking there may, I hope, be things in your favour, because a performance management process ought to be recorded, and the employer should have records of proper meetings during which issues of poor performance were raised, and you were told what standard was expected from you and the consequences of not meeting those standards; and what, if any, support or training the employer would need to provide to assist you to meet their expectations. These may, however, have been part of formal supervision meetings with your manager. If such a process has not happened, then the dismissal would be unfair. But since the employer appears to be saying it has happened, then it is going to be down to a tribunal to decide who they believe.

You should have been advised that the meetings to do with performance, and especially the last one were "disciplinary" (don't care what the handbook says - they were disciplinary), and that you had a right to be accompanied. And you should also have been advised that you had a right to appeal.

So there appears to be some serious process flaws in what the employer has done which would certainly raise unfair dismissal. But even if all that is true, it may be only one part of the equation if the outcome of a fair process would have been the same - i.e. the perfromance issues were raised, you couldn't do the work and could not improve in an acceptable time.

Now just because you make a tribunal claim does not mean that a case will need to go to a tribunal. The employer may decide to settle the matter, and that settlement could include the "nicer reference" that you want. This sort of setllement happens often - but there are no guarantees, and so if you start down this path you must be prepared to see it the whole way. Such a settlement would be in your best interests - one thing a tribunal cannot award anyway is a good reference. The terms of such a settlement usually mean that neither party can disclose the settlement, and the employer is not allowed to say anything about you except what is in the agreed reference. Some people keep those promises. Some don't. There is never any guarantee that people do not pick up a phone or have a conversation! And such things are mostly difficult to prove.

So whatever you decide, you need to understand that there are no guarantees - ever or about anything. So we are still back to the place in which you must decide what you want to do about this - and you must do so before too much time passes because a tribunal claim must be in three months less a day (at the latest) after your dismissal, and you will have to fill it in first.

And really, when you find another job, join a union. Please???? People who can't spot that they just got sacked shouldn't be in meetings with employers on their own!

[trufflestu]

Re: Made redundant, they are advertising for my job before and still are after.

Thank you for this. You probably don't get appreciated very much when you have to tell people some truths that they don't want to hear.

This is my first experience of such an occasion, and as such have nothing to compare it too, whereas you have probably encountered this scenario many times and as such understand what is going on.

My ex employer likes to cut corners, I have first hand experience of this with the treatment of others within the company.

I have one more question. In relation to my reference, if I was to pursue a tribunal and the tribunal was to find I was unfairly dismissed, would this then prevent my ex employer from stating in a reference that I was dismissed? (I understand the tribunal can't decide on references but can they prohibit what is written in one based on their decision/outcome to the hearing)

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

Thank you for this. You probably don't get appreciated very much when you have to tell people some truths that they don't want to hear. That's a slight understatement :tinysmile_hmm_t2:. I am still waiting for another poster to answer some questions I asked her which I doubt she will ever do, simply because I pointed out twice that the legal right she kept claiming she had didn't exist! You wouldn't believe some of the names I have been called!

This is my first experience of such an occasion, and as such have nothing to compare it too, whereas you have probably encountered this scenario many times and as such understand what is going on. Yes, I accept that - but getting to "redundancy" when it was never actually mentioned, I must admit, was, shall we say, a leap??? That's a first for me!

My ex employer likes to cut corners, I have first hand experience of this with the treatment of others within the company. No doubt. But I get the impression that this is also quite a small employer with no HR. That doesn't mean that they can break the law with impunity, but it may give rise to a certain degree of lattitude from a tribunal. That is where the problem lies in this case - the faults that I can clearly identify are process faults, and that is where small employers can get some lattitude from tribunals. The fact of the issue - the failure to grasp the software - doesn't seem to be in dispute, so the "yardstick" is whether the employer did enough about this to correct the problem, and that is something you and I can only express an opinion on, because the decision lies with a tribunal.

I have one more question. In relation to my reference, if I was to pursue a tribunal and the tribunal was to find I was unfairly dismissed, would this then prevent my ex employer from stating in a reference that I was dismissed? (I understand the tribunal can't decide on references but can they prohibit what is written in one based on their decision/outcome to the hearing) No it doesn't. It doesn't change the fact that you were dismissed and it doesn't change the reason why that happened. The fact that they dismissed you is still a fact. All it gives you is a piece of paper that proves that a tribunal says that dismissal was unfair.

In reality - but this is just a guess, you must understand - the likelihood is that if you aren't after a lot of money here, and all you really want is the reference not that you are to ever say that then you can probably settle this. The employer is almost certainly going to end up with legal costs (they can do it themselves but few do), and those will probably cost more than anything you would possibly win. People making tribunal claims often have glossy notions gained from headlines about how they will retire on their winnings. The average award is only in the region of Ł5 - 7k and the majority of awards are an awful lot less than that! So you won't get a lot of money, and if you are prepared to haggle a bit, a settlement with an good agreed reference is probably right up your street. And quicker. But obviously, the first step has to be to make the claim to a tribunal to concentrate the employers mind.

If that happens, then you can negotiate for a reference that says something along the lines of a mutually agreed termination - anything that is true, or to be more precise, anything that is not a lie! So you could ask for it to say redundancy - technically that isn't a lie since people aren't made redundant anyway! Long story and I'm not explaining now, but there is no such thing as a person being made redundant, not legally, so saying it happened isn't a lie because it technically couldn't happen!

Obviously, I can't promise you this - it's my best guess and based on you not being too greedy about money. I can advise on wordings and I can help you haggle a settlement figure, but I can't promise that it will happen!

[FlamingParrot]

Re: Made redundant, they are advertising for my job before and still are after.

In my own personal experience, it is perfectly possible to negotiate a settlement with an agreed reference, even when you are dismissed for alleged Gross Misconduct, I know that for a fact because I myself got one. I filed an ET claim and had legal representation but not a very good case, in fact, very likely no case at all. I was offered a rather small cash settlement and an agreed reference that I wrote myself, in return for not "making disparaging remarks" against the company for five years. The whole thing was arranged by my solicitor through ACAS and it must have worked because I never had problems finding work (well, not until after the credit crunch caused by the banks, this was in 2004).

Years later, a friend of mine had problems at work and resigned, he then went to the same legal advice centre as me and submitted a claim of Constructive Dismissal. Despite the low success rates of such claims, he was also offered a settlement, a small cash amount and agreed reference.

Both of us worked in the financial $ector but last year, a member of this forum also managed to get a similar settlement after being dismissed by a fast food chain and is now happily working somewhere else.

Employers refer to these as commercial settlements because it's cheaper for them to do this than to pay for legal representation at the ET. My ex-employers had hired a law firm that charged upwards of Ł500/hr! :wof:

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

FlamingParrot is quite right. But as I said, there are never guarantees. Some employers fight to the bitter end even against good claims. And small employers can often be the most bloody minded about fighting. It's a game of chicken and the first one to blink loses.

[Inca]

Re: Made redundant, they are advertising for my job before and still are after.

Can I just say,trufflestu,how nice it is for someone to THANK Eloise for all the time she puts into her replies on here. She is blunt and to the point and a lot of people don't like that and give her grief and others are downright rude!
So Thankyou for that,,and I see FP s on board as well,another lady who works hard on her input on here.
Listen to their advice and you won't go far wrong

[FlamingParrot]

Re: Made redundant, they are advertising for my job before and still are after.

Can I just say,trufflestu,how nice it is for someone to THANK Eloise for all the time she puts into her replies on here. She is blunt and to the point and a lot of people don't like that and give her grief and others are downright rude!

The problem is that UK employment law tends to favour the employer over the employee - there are reasons why this is arguably 'good for the country' in terms of offering incentives for businesses, encouraging entrepreneurship, etc. Regardless of whether this is true or not, many people overestimate their employment rights and their chances of success against their employers. When Eloise tells them they are mistaken and sets the record straight, some tend to get upset or disappointed, and their reaction is to shoot the messenger.

In my case, it was all the opposite, looks like I had actually UNDERESTIMATED my employment rights! :dance: :dance: :dance:

So Thankyou for that,,and I see FP s on board as well,another lady who works hard on her input on here.
Listen to their advice and you won't go far wrong

Thanks!:yo: Your support is appreciated. :hug:

[Eloise01]

Re: Made redundant, they are advertising for my job before and still are after.

In my case, it was all the opposite, looks like I had actually UNDERESTIMATED my employment rights! :dance: :dance:
.

Or the employer overestimated them! That isn't uncommon.

I entirely agree that employment law is on the side of the employer - I have said on many occasions that it exists to mitigate the potential excesses of employers, and for that purpose alone. Anyone who is surprised by that should look up the definition of "capitalism"! But when employers complain about the tribunal system and the law, they aren't being disingenuous - they really mean that the think the law gets in the way of their business interests. Scrape any civilised veneer, and they actually do think that it is their right to hire and fire as they wish, and to put their profitability above fair wages and so on. As I keep commenting, they are employers and not social workers. They don't really care about your childcare issues, your elderly parent, your disability, your sickness, or anything else that isn't about making a profit for them. If it costs them, it's bad.

But you are quite right about shooting the messenger. Just this morning I had two more (on another site). One of whom insisted that they had been discriminated against when there was utterly no evdence at all of discrimination and they hadn't even talked to the employer (but who had managed to obtain a leading ACAS expert who said they had been discriminated against - but who wasn't enough of an expert to know that ACAS aren't permitted to give such legal advice!; and also got a CFA lawyer to take their case last night between the hours of 6 and 8pm. So I was wrong and that was that. The other actually hadn't ever spoken to the employer about their complaint, had no evidence that what they said had happened had happened, but when I told them five times to ask the employer the question because I needed their explanation to assess whether something was fair or not, they claimed to have obtained advice from one of the country's leading academics which disagreed with mine (which I hadn't given!) - it's nice to know google still works though!!! Because that's the only way they could have even heard of Hugh Collins. It is amazing the lengths that people will go to to prove black is white when they are on an anonymous internet site - and the way they will speak to people when they wouldn't dare talk like that in my office; and get huffy when I tell them straight back what I think of them! If they don't like the advice they can simply go away - but no they have to argue about how wrong it is when they don't know the answer themselves because they are asking! Although I did quite enjoy the one whose comment was "I didn't ask your opinion" - duh, yes, actually, you did!

[Sapphire]

Re: Made redundant, they are advertising for my job before and still are after.

As I keep commenting, they are employers and not social workers. They don't really care about your childcare issues, your elderly parent, your disability, your sickness, or anything else that isn't about making a profit for them. If it costs them, it's bad.

Thats not fair, not ALL employers are that way inclined many of us small to medium business owners bend over backwards to help and accommodate our staff with whatever problems arise and more then often end up getting sh ite on from a great height because of it.

[leclerc]

Re: Made redundant, they are advertising for my job before and still are after.

As I keep commenting, they are employers and not social workers. They don't really care about your childcare issues, your elderly parent, your disability, your sickness, or anything else that isn't about making a profit for them. If it costs them, it's bad.

Thats not fair, not ALL employers are that way inclined many of us small to medium business owners bend over backwards to help and accommodate our staff with whatever problems arise and more then often end up getting sh ite on from a great height because of it.

I would say it's not fair cos you are suggesting social workers actually care which I find absolutely incredulous