Redundancy/constructive dismissal/unfair dismissal?

Hi, my name is Richard and I work for a telesales company overseering the quality of the call centre. There are 6 people across the company who have the same role as myself but I am the longest serving member. I am based in Swansea with two other quality advisors who have just recently been taken on within the last 3 months.

The company advised us before christmas that they no longer need 6 members of staff and now only need 3, so 3 jobs would no longer be needed. They did explicitly say they didn't want to make anyone redundant.

All 6 of us took an assesment (which I believe I did reasonable well in as it was maths and computer packages based, both of which I have studied in and bearing in mind some people don't even know how to operate a computer are their maths aren't the best). In addition to the assesment there were other factors involved such as attendance, disciplinaries, skill sets, experience etc. I knew going in to this process that I was not going to retain my job due to the amount of time off I have had recently. This was due to constantly being in pain with my back resulting from a car accident last year.

The result of this process was: I didn't get to keep my job. They never told me I was redundant however they said my position was no longer available and that they would make a sutible alternative offer of employent and also said 'If you do not accept the alternative suitable offer then you will forfeit your rights to statatory redundancy'.

In our company handbook it states:

'Redeployment into alternative work

The Company is committed to seeking suitable alternative work for employees who are under notice of redundancy or where redundancy consultation has started. During the period in which redeployment is being pursued, 'at risk' employees will be interviewed for any appropriate vacancies before others are considered.

An offer of redeployment that has been accepted by an employee will be regarded as an offer of suitable alternative employment and as such will be subject to a trial period of no less than four weeks in line with statutory requirements.

The trial period will allow the employee to establish their suitability for the post. If, at the end of, or during, this period it becomes obvious that the employee is not suitable, they will be regarded as having been made redundant unless alternative work is available.

If an employee unreasonably refuses suitable alternative work up to one week prior to the date of termination, a redundancy payment will not be made. A redundancy payment may not necessarily be made if a job is secured elsewhere and the employee is released before the end of their notice period.

Time-limited salary protection arrangements will be considered where an employee accepts a lower paid job.

The Company will consider retraining staff where this will avoid redundancy and assist redeployment'

I was told that if I accepted this position I would be subject to a 4 week trial period which is in line with the redundancy process. I advised them that I wasn't happy with this position offered as it wasn't suitable but had no other alternative so agreed to give it a try. I have been doing the job for 1 week now and was called in for a meeting last Friday the 13th of January. The company told me because they hadn't given me an exact date as to when my previous role was going to be made redundant, legally they don't have to give me a 4 week trial period, eventhough I only accepted the job under the pretense of the 4 week trial.

I told the company that i'm not able to do the job offered as it is physically making me ill due to stress, I wasn't happy with the pay decrease from £8.25 to £7.50 per hour and that I would like to take my redundancy. I had a meeting with the company yesterday and they told me that yes they were wrong, they shouldn't have given me a trial period (even though that's stated in the company handbook) and that their intention was not to make anyone redundant and therefore would not be paying me my redundancy pay and if i wante dot leave i would have to resign.

They admitted that they did start to follow the redundancy process but then it moved away from the process as apparently every situation is different.

Sorry for the long read but i wanted you to know the situation I am presently in.

I don't know where to go form here, I have spoken to ACAS, Citizens advice bureau but apparently i don't qualify for free legal advice.

Surely they have made my position redundant, I havent signed a new contract for employment as I couldn't do the cold calling hard selling job and I did have a trial period which I was in at the time. According to the company handbook I should now be classed as being made redundant is that right? Also i'm not sure if there is anything I can do re the attendance issue (due to back problems) affecting the decision made to keep me in my previous role.

The company has advised me that if i do not come in to work then I will go down the disciplinary route and be dismissed. I am currently off due to stress while I figure out what to do next. Any help would be greately apprecieated

thankyou for taking the time to read this.

Well you say you were under redundancy consultation at the time the alternative job was offered, so the 4 week trial period should apply. Presumably they are saying you weren't, so it didn't apply. That seems to be the crux of the matter. And despite your long post there is probably not enough information there for us to judge who is right.

But what is clear is that if you are saying you are redundant, then you would have to resign and make a claim to a tribunal to get any payment.

Is it worth it? How long had you worked there and how old are you? You might be better off suggesting you leave in a compromise agreement with an agreed reference - otherwise whichever way you leave that might be a problem when looking for future jobs.

I agree. I would particularly like to hear an explanation of how a job you have been doing for a week is making you ill due to stress? Because those are grounds that are not liklely to be believed or considered by a tribunal, and it would be helpful to know why you think this is relevant to your desire to refuse the job.

Thanks for the comments,

Yes I was under the redundancy consultation period when they made me an alternative offer of employment and it was subject to a 4 week trial which they later decided they shouldn't have given.

I'm 28 and have been working there for the past 6 years. This last year I have only been working Tuesday - Friday due to taking lessons for my exams as a ballroom and latin dance Instructor. Im not really bothered about a reference as I plan on working for myself. Tbh I'm not really that bothered about the money it's just a matter of principle, they made me redundant, I just want my redundancy pay for the long and dedicated service I have provided the company to help shape it to what it is today.

In regards to the whole stress thing, my role was not on the phones, now the job offered is cold calling customers, customers telling you to f-off constantly, being pressured to sell, having to push the deals we offer on to customers when it would make them spend more, morally I can't do this job either. It is very stressful. In addition to this I didn't want to just give my notice in as I didn't know where I would stand until I had sought some legal advice and at the same time I didn't want to do the job as I advised them it wasn't suitable. In my eyes this only left me with one solution which was advised to me by a big hr company..

To add more information to the above, firstly I was made 'at risk' then an assessment was done to select the employes who would remains and who would not retain the job. I didn't get the job. An individual consultation period was started where they made me an offer of suitable employment subject to a 4 weeks trial period. I advised it wasn't suitable but had no choice but to take the position. After doing the position for 1 week I had another meeting with them to say they messed up and they shouldn't have given me a 4 weeks trial period and going forward there would be no more trial period.

I had to make a decision there and then. I Advised the job wasn't suitable as it couldn't be more different from my job and they said go home over the weekend, have a think about it and then come back to us with your thought and if undecided to accept the job I had a contract that I would have to sign. The rest you know.

I hope this helps in regards to understanding the situation.

Thankyou for your advice so far. Also I sent this message from a phone so I apologise for the typos in advance

Rich

I think maybe you have a case, if the process was properly documented up to the point they changed their minds. Depends what their reason for doing that was and how that stacks up. At the very least, you should be able to rattle their cage and get a bit of cash out of them to make you go away.

The redundancy payment would only be £2400 (£2580 from Feb 1st) or your weekly wage if that was less than £400/£430, plus notice pay, and assuming you were on minimum statutory terms, so you'd need to decide if it was worth it.

What do you think SarEl?

Hmm - well I think it is worth a try, but it is dodgy. The employer is possibly correct in law about the work trial - I am having a bit of difficulty sorting the wood from the trees here, but as far as I can see the OP was at risk - redundancy notice had never been served and the right to a work trial is immediately after the last job finishes i.e when the redundancy notice expires. On a technicality I think the employer may be correct vis-a-vis a work trail not being what has transpired here. Whether a tribunal would go for it I don't know - as we both know tribunals are becoming increasingly harsh in their judgements of what is suitable and what is not, with less and less being "not". It's not straightforward, that much is clear, so I might be inclined to say that if the OP can get something, it might be better than the risk of a tribunal.

Thankyou again to both of you for taking the time to read and reply to my post.

I'm Kind of stuck in limbo atm, I don't know where to go from here. What would be my next step in pursuing this? Also what do I do in regards to my employement as they don't want to pay me my redundancy and I don't want to be on the sick. I don't get paid to be on the sick and I'm a firm believer of if your well enough to work then you should work. I don't want to say i'm leaving as that would be me gibving in my resignation wouldn't it?

thankyou
Rich

I think your only option would be legal advice. You don't want to stay, they won't pay redundancy. You are at an impasse. And on a site like this we have limited details - not enough to risk your future on.

ok, thank you very much