The case is about our client who was being made redundant after he blew the whistle on malpractice. There was also a dispute over his notice period and contract of employment. This letter is the employers’ final response to our client. It rejects the client’s appeal against the employer’s decision to uphold the redundancy. This is the 4th (the last) in a series of 4 letters (two from each side). Click on the links highlighted below to see the other letters:
Letter no 1
Letter no 2
Letter no 3
Letter no 4 (Final outcome) – below
We are making this series of letters available to you so that you can see for yourself that sometimes not all cases are successful. In this instance, the case was complex, related to events that had taken place oeverseas, and the client did not have sufficient evidence to support all of his claims. The outcome might have been better had the client sought our advice much earlier on some of the issues he raised (eg employment contract), rather than wait until he was made redundant. In the circumstances he decided not to pursue the claim further.
If you would like more information on these and related topics, have a look at our website and in particular at the articles on Redundancy, Whistleblowing and PILON. You can also contact us at Monaco Solicitors if you think that we might be able to help assist you in your employment case.
Private & Confidential
By Email Only
Dear [client name],
Following your appeal hearing against your redundancy dismissal with myself, via telephone, on [Date], this letter is my formal response to your appeal.
You were entitled to representation at this hearing but chose not to have anyone with you.
Through our discussion, I believe there are 4 core concerns that you raised:
- Contract of Employment
- Genuine Redundancy & Redundancy Process
I will take each of these in turn and respond accordingly.
Contract of Employment
Whilst you contest that you have a 3 year fixed term contract, you cannot produce any formal signed documentation that substantiates this claim. Whilst you say that [Name] indicated to you that it was a 3 year contract, I believe he was referring to the intention that it was a 3 year assignment, as per the Oversees Policy. However, this is completely separate and different to an individual’s service agreement or contract of employment. The document that [Name] sent to you was a draft document. I can confirm that [Name] did speak to [Name] about the matter who confirmed that he believed you were on a 3 year contract, but there is no documentary evidence to support this.
You signed a Service Agreement in January [date]. However, this was NOT a new contract of employment or amending previous terms but was simply supplying you with the correct and relevant employment contract that was outstanding from the date of your appointment. The Company had no knowledge of the conversations that you had with [Name] about a 3 year contract back in September [date: – the year before the Service Agreement]. I dispute that the Company was at this time attempting to vary your terms and therefore there was no requirement to give any consideration to any changes. You signed the Service Agreement which is a permanent contract of employment, giving 3 months’ notice of termination on either side. At no stage did you raise a question about the contract and signed the Service Agreement. This is the latest formal and signed document that exists and therefore takes precedent over any other documentation.
I understand that during the redundancy consultation process, you maintained you had a local contract that stated it was for 3 years, but then your solicitor advised [Name] towards the end of the consultation process that a local contract did not appear to exist. However, you advised me during the appeal hearing that you do in fact have a local contract, in which case you should provide [Employer] with a copy of it; otherwise the Company’s position is that you misled the Company in this regard. If a local contract does not exist, it could be deemed that you have been employed illegally, unbeknown to [Employer]. However, this equally means that you do not have a valid contract of employment and therefore cannot make any claims for breach of contract, in any jurisdiction. In any event, we believe that the Service Agreement is legally binding and the Company stands by the terms of this.
Genuine Redundancy and Redundancy Process
The reasons for the Company withdrawing from the Abha were made clear to you at the start of the consultation process and are contained in your “at risk” letter which was sent to you on [Date]. In addition, I confirmed to you on our call the financial and commercial reasons for taking this decision at the highest level; namely that the Abha operation was targeted to achieve £3M sales in [date], with an EBIT of £0.6M. The actual position in [same date] was a FY projected loss of £1.8M, with no income and no single order being placed. Clearly, given the performance of the rest of the Group , this loss making situation is not sustainable and this was the ONLY reason for the Abha decision and it was not in any way related to any other issues that were ongoing.
In relation to your comment about not raising the drinking matter, the letter from [Name] dated [Date] refers to you not raising your concerns about being victimised as a result of you notifying your manager of the incident or your concerns about entering Dubai, and not the incident itself. To confirm the timeline, you only raised these specific concerns with her for the first time on [Date] as part of a separate grievance investigation. I do accept that this was prior to the redundancy consultation, however, it still leaves a gap of 3 months before you decided to raise it as an issue. The What’s App situation had been dealt with internally well before you raised your concerns.
Having done some investigation into this, I can confirm that you have entered Dubai on your business visa on a number of occasions between June and October [date], without incident. Therefore, your claims of fears for your personal safety are unfounded. The Company once again confirms that there is no evidence whatsoever of an investigation by the authorities into this incident.
Your allegations that the decision to withdraw support from the Abha business and your subsequent dismissal on the grounds of redundancy was due to the What’s App incident is wholly and completely refuted. As I have said above, this was a genuine business redundancy situation due to serious financial and commercial reasons and nothing else.
You have also raised questions about being given the opportunity to be considered for a role in Abu Dhabi and other alternative employment. Having investigated this matter, I can confirm that at your meeting with [Name] on [Date] and again on [Date] , there was a discussion with you about you repatriating back to [country] as well as staying with [Employer] in the Region. You were also provided with a copy of the internal vacancies across the Group and [Name] did mention to you a potential role in Abu Dhabi. However, during subsequent discussions, your main focus was on a settlement and the issue of your “3 year contract”.
The Abu Dhabi role was discussed again at a meeting with you on [Date] but as discussions had moved on considerably during this period, the focus of your intentions was on securing an improved redundancy package based on your belief that you had a 3 year contract, and was not focused on remaining with the company in any capacity. Had you have indicated to [Name] that you did want to definitely be considered for the Abu Dhabi role, then the redundancy consultation would have been suspended whilst you went through a selection process. Unfortunately, the Abu Dhabi role is now no longer available.
Your concerns raised in your letter regarding the Whistleblowing Policy in relation to the What’s App incident are not in any way connected to your redundancy or the consultation process. These are completely separate situations and I am not at liberty to investigate these issues now. If you had concerns regarding this, you should have raised them at the time, and not as part of your redundancy appeal.
We agreed that this was not part of your grounds of appeal and I have responded to you separately in relation to this.
During your appeal, we discussed your entitlement to repatriation back to [country]. I can confirm that the Company is willing to extend the deadline for using this entitlement up to [Date] , which should allow you to make the necessary arrangements.
I have responded to your questions regarding your employment contract and the Company’s position remains that you do not have a 3 year fixed term contract of employment. Therefore, I reject this part of your appeal.
I have confirmed and given you additional information that demonstrates that this is a genuine redundancy situation. The Company rejects your appeal on the grounds of there being no genuine redundancy and rejects that there is any link to the allegations made regarding a drinking incident. The financial and commercial reasons for the withdrawal from Abha are very clear and are in no way linked to any other issues that you have raised. The Company rejects these claims.
Your comments about the Whistleblowing Policy are not connected with your redundancy appeal and should have been raised at the time.
Taking all of the above into account, I confirmed that I reject your grounds for appeal and your dismissal on the grounds of redundancy will stand.
You have no further right of appeal on these matters and the Company considers all the issues you have raised as closed and concluded.
Group HR Director
For and on behalf of [Employer]