Unfair/Constructive Dismissal, but not served 2 years

[bigfatpotatojoe]

Hi guys,

New to the forum, but I have got a case that I thought would be worth turning around here.

The matter of the fact is that we are a big group of people being made redundant, and the company is in most cases dealing with it in an appropriate manner with a 3 months Consultation Period subsequently followed with Notice Periods and/or enhanced terms on top of the statutory redundancy terms.

The reason behind the redundancies is that the company is moving it's operation for certain departments outside of the UK.

In my case, however, I feel the company (employing more than 15.000 employees) is not acting accordingly, due to the following reasons:

* A replacement was hired for the "new" company (but acting on behalf of my current employer) on the day of the start of Consultation.

* I have proof that the replacement has been taken contact to and is running my day to day operations with partners etc.

* The person is possessing exactly the same position as myself, but with less/no experience within the industry (proof found on LinkedIn for this)

* I have the numbers to back me up, that growth has been produced in the period of time I have been working with the company for the specific Region that I was assigned to.

However my only problem is that I was hired after the 6th April 2012 and therefore has been at the company for less than 2 years - however does that still entitle the company to treat me without reasoning?

I was in fact "poached" by my current employee, and the contract was signed before the 6th April 2012, but I guess that does not count in this case?

Looking forward for the feedback !

BigFatPotatoJoe

[charitynjw]

Re: Unfair/Constructive Dismissal, but not served 2 years

Hi BFPJ, & welcome to Legal Beagles.

You have to be employed for 2 years to qualify for redundancy, although it is up to the employer if they/you wish consider voluntary redundancy.

& for unfair dismissal, as your contract of employment started after 06/04/12, again you need 2 years employment.

I must say that, with such a large firm, I'm surprised no-one has told you this.

Btw, where does constructive dismissal come into this?

[bigfatpotatojoe]

Re: Unfair/Constructive Dismissal, but not served 2 years

Hi Charitynjw,

Thanks for the reply !

To be honest if you saw the setup and the organisation you would not be surprised - however we are yet to have entered individual consultations, so I would most probably have been told then.

BigFatPotatoJoe

[teaboy2]

Re: Unfair/Constructive Dismissal, but not served 2 years

Actually if your position, itself, has not been made redundant, and if by the sounds of the replacement he/she is a direct replacement for you, then they can not make you redundant as your position is itself not redundant and they can not make you redundant and give your position to someone else - Though you will need to find out exactly what this replacements position is in the company and what their duties are precisely, and don't be afraid to ask questions as if they act unfairly i.e. bully, intimidate, abusively towards you for asking then they are digging a bigger hole for themselves.

Contrary to what charity said, the 2 year qualifying period is not relevant to cases of Automatic Unfair Dismissal as no qualifying period is need for such cases where it is deemed Automatic Unfair Dismissal, which is not the same as Unfair Dismissal!

Take a look at Section 105 of the Employment Rights Act 1996

[FlamingParrot]

Re: Unfair/Constructive Dismissal, but not served 2 years

In my case, however, I feel the company (employing more than 15.000 employees) is not acting accordingly, due to the following reasons:

* A replacement was hired for the "new" company (but acting on behalf of my current employer) on the day of the start of Consultation.

Is this a situation where part of the company's activities (for example, certain departments) are being outsourced to another company who, in turn, uses overseas services?

However my only problem is that I was hired after the 6th April 2012 and therefore has been at the company for less than 2 years - however does that still entitle the company to treat me without reasoning?

I was in fact "poached" by my current employee, and the contract was signed before the 6th April 2012, but I guess that does not count in this case?

Can you explain this? What do you mean by 'poached by your current employee'?

You also mention Constructive Dismissal, that refers to a situation where the employee is virtually 'forced' to resign due to the employers conduct, as noted here: http://www.lzwlaw.co.uk/documents/employment_law_cd.htm

From the information you have provided, it's not clear how constructive dismissal could relate to your situation, but be warned that such cases have a very low success rate, a mere 3%. :frown

[teaboy2]

Re: Unfair/Constructive Dismissal, but not served 2 years

Is this a situation where part of the company's activities (for example, certain departments) are being outsourced to another company who, in turn, uses overseas services?

Can you explain this? What do you mean by 'poached by your current employee'?

You also mention Constructive Dismissal, that refers to a situation where the employee is virtually 'forced' to resign due to the employers conduct, as noted here: http://www.lzwlaw.co.uk/documents/employment_law_cd.htm

From the information you have provided, it's not clear how constructive dismissal could relate to your situation, but be warned that such cases have a very low success rate, a mere 3%. :frown

Ahh i missed the following bit: "I was in fact "poached" by my current employee, and the contract was signed before the 6th April 2012, but I guess that does not count in this case?"

Ohh it does.... as a contract of employment starts from the date the job offer was agreed whether verbally or in writing. So if the contract was signed before the 6th April 2012 then your in the clear and would only need 1 years employment from date you signed the contract. its best to go by the date the contract was signed, though did the contract state a start date in it? As that might changes things a bit.

If you can answer FlamingParrots question about the replacement and the outsourcing and if the replacement works for the company the work is being outsourced too, or if he works for same company as you, then that would be useful info!