Advice urgently required - consultation tomorrow!!

My husband has been continuous employed by his company since 31/01/2005. He has never had any issues in his employment but, in May 2008, a dispute arose surounding the calculation of annual leave entitlement. As my husband has never been issued a statement of terms and conditions of employment and therefore did not have any information about his entitlement to annual leave, he raised a formal grievance. In the grievance he also requested a statement of terms and conditions of employment. The grievance about the annual leave was satisfactorily resolved and a contract of employment was promised but never materialised.

Since the grievance was raised however, my husband has had continual issues at work culminating in a first redundancy consultation letter being issued earlier this month. He attended the consultation meeting where he was informed that he is the only person being selected for potential redundancy as he is the only member of staff whose job is ceasing to exist. He has now received a letter informing him he has been provisionally selected for redundancy and invited to attend a second consultation tomorrow afternoon.

In the absence of a statement of terms and conditions or a copy of the company redundancy policy, despite requesting both on numerous ocassions he does not know what to expect in terms of entitlement and, as he is the only employee to be made redundant, how long the formal consultation period can be before he is officially given his notice.

Obviously, we are getting ever closer to Christmas and panicing that he is going to be out of work at a time when most companies are shut down and he will have no way to find another job before the New Year!!

Could anyone inform us of what his statutory entitlement to notice and payment will be and whether this consultation period is forming part of his notice or whether any notice will only begin at the point where his employer issues him with a letter notifying him that he is definitely being made redundant.

If there is any way possible, we don't want him to be made redundant before Christmas but, at the moment, we don't even know if time is ticking away without us even being aware of it!

Any help from anyone would be very greatly received.

To give specific advice without knowing the full information is difficult. However, during the consultation your husband should raise all the points you mention as representations. First one being why is his the only position being selected. The Company has to give your husband the reasons as to why his position has been selected. Make sure they are saying his position is at risk and what selection was used. It is a bit confusing as you say only person and then only job. If he has a job title the same as others then to be selected a selection process must have taken place first and the criteria notified to all those in the pool. If it is his job that is selected then as I said he must be told why.

He also has the right to have the first consultation meeting backed up in writing to basically state what was said and what terms were notified to him and the process being followed and then he has the right to contest the contents of this letter if it does not follow the statute procedure.

The Company must follow the statutory dismissal procedure for a redundancy and basically with no terms and conditions and he took them to a tribunal for unfair dismissal they would be automatically fined for not issuing his written statement within 8 weeks of his initial start date and certainly if they had promised him (hopefully in writing) and never delivered this would not help them.

As to statutory rights, you should visit the BERR website where you can also calculate your husband's statutory redundancy pay entitlements and also read up on the process in full.

http://www.berr.gov.uk/whatwedo/empl...ncy/index.html

In answer to your question re consultation it must be agreed be concluded before notice must be given, therefore the notice period starts at the end of consultation and does not run concurrently.

However, with no contractual terms your husband's notice would automatically be 1 week for each year of service and therefore on the information given he would be entitled to 3 weeks notice. However, depending upon when they say the termination date is proposed to be and with his service commencing 31 Jan, he could end up being entitled to 4 weeks notice. He should ask others what their contractual terms are so that he can check if they are being fair and consistent to him in the absence of his own written statement.

Has he asked if there is a Company Handbook? I would ask this as well.

If your husband feels that he is being singled out for redundancy due to issues prior to the notification of potential redundancy, then he can raise a further grievance which could mean that the redundancy consultations are put in abeyance until the grievance is resolved, or he raises this as a point during the representations as being unfair and they have to respond to his representation and give him an answer.

If regretfully your husband is made redundant despite all the above and the info on the BERR website, he has the right of appeal which must be given in writing at the end of the consultations when his redundancy is confirmed. If he feels still that the redundancy is unfair then he should appeal as he cannot take the matter to an ET if he does not go through the appeal process.

Hope this has helped.

Carol,

Thank you so much for responding, your help is very much appreciated in the absence of any advice being available from anywhere else!!

Regarding the questions you have raised, I can comment as follows:

- In the initial letter the letter stated, "We are in the regrettable position of having to consider implementing a redundancy programme for yourself as a result of business restructuring which has meant your role no longer exists." During the meeting, my husband asked why the company was making redundancies to which they replied that they were not making general redundancies and that the company have had to look at the actual jobs and it has become evident that his role no longer exists. Further to this my husband asked how many people were likely to be affected to which the employer responded the only person whose job no longer exists is my husbands. The main dispute is around what his role actually is and the fact that my husband is diputing that he is not the only employee to fulfill his role and that the role they are stating that he is employed to do is not what he actually does. Without a contract of employment though this is impossible to prove.
- During the first consultation he asked what the selection process had been to which he was told that as the possibility of redundancy has not arisen other than a change to one procedure then it is only being considered for him.
- We do have full minutes of the first meeting.
- There has been no selection criteria whatsoever and no other employees have been notified or considered.
- During the first meeting, a dispute arose around my husbands capabilities to do his job which was completely inappropriate given that no mention had ever been made prior to this process of their dissatisfaction with his work and he had in fact been promoted only 12 months previously. This role was subsequently taken off him with no notice or consultation and announced in front of all members of staff not long after the annual leave issue was raised!
- No terms of redundancy have been notified as yet. My husband did ask at the last meeting for a copy of the company redundancy policy and he received a letter this week stating that the company adhere to the statutory redundancy policy.
- No one employed by the company has a contract so no comparison can be made. Can you tell us what would happen if one suddenly materialised?
- We were under the understanding that we only had the right to appeal against the decision at the point a decision is reached at which point we intended to appeal as we feel it is unfair dismissal on the grounds of exercising statutory rights. If this is the case, would the notice period start at the point they issue the notice or only after they had responded to our appeal? I know this sounds terrible but we are desperate to drag this process out over Christmas to ensure we aren't left high and dry at the worst time of the year to find a job!! What is the difference between raising a grievance now or an appeal at the point of decision?

Once again, thank you so much for your help!!

If they are saying that your husband's role no longer exists, they are basically pre-determining the outcome. They should have said that they have identified that they believe it no longer exists and his job is at risk of redundancy. In consultations your husband should ask why and how they came to this decision. He knows if his workload has diminished or not and should be able to prove this.

No contract of employment will outline the actual job and role, only job descriptions do that, and I guess none exist. Therefore, if your husband believes that there are people undertaking the same job as he does, he should put the information forward (people and what they do) and then the company has the duty to look into his representation and come back to him on this point.

Capability (performance) is not to be used in redundancies when there is a single position identified. It is only used as a criteria when selecting from a pool, which they said they have not done. Therefore, the redundancy could be potentially unfair and they are contradicting themselves by saying his job has diminished to a point where it no longer exists and then saying there are performance issues.

In the consultations I would raise both these points.

Yes, an appeal is only given at the end of the consultation process once the redundancy is confirmed.

Its up to your husband to decide if he wishes to wait before raising a grievance.

Again, revisit the BERR website or call Acas where you can raise individual issues and get free advice, or go down the local Citizens Advice Bureau.