Without prejudice letter: Redundancy sham and process failures

PRIVATE AND CONFIDENTIAL

[Name of employer contact]
[Name of employer organisation and address]

BY EMAIL ONLY: [Email address of employer contact]
[Date]

WITHOUT PREJUDICE SUBJECT TO CONTRACT AND SAVE AS TO COSTS
VERY URGENT

Dear [Name of employer contact],

Please note that [name of our client] has instructed us to assist him in respect of his proposed termination of employment by reason of redundancy and a proposed settlement agreement.

We have liaised with our client in respect of the redundancy and how it has arisen. We have also reviewed various paperwork and the settlement agreement. We set out our understanding and comments below.

Background
Our client has advised that he has worked for the organisation since [date] (12 years). He is employed as Head of [name of department] and has managed a team of six. He has worked with utmost dedication, loyalty and expected to have a long-term future with the organisation.

He has had no performance issues or disciplinaries in the 12 years he has been employed and has been regularly praised for his work and achievements. His last appraisal records:

“[Our client’s name] has done an exemplary job of keeping the marketing team functional during a hiatus with no director when it would have been easy to let activity slip behind. He has used his initiative to produce reports on internal communication and has been instrumental in introducing a new vision framework and delivering a new pricing structure. In addition, I have witnessed his coaching of new staff and his support of existing team members which has been planned, effective and considerate.” This appraisal also records that “he is very passionate about the organisation living up to its values. He is fully engaged with the organisation’s overall aims and feels well motivated to make a difference.”

Further, there is reference to the fact that [dates for the year 2 years previously] was an unsettling period due to changes in management and lack of leadership and direction. It was agreed that all that would be put in the past and look to the future. It was recorded that: “Despite that, he has managed the team well and has delivered a marketing effort that has helped revenue for [unsettling year date] grow.”

This unsettling period continued with changes in leadership that did not have the necessary impact and strength thereby hindering growth in business development to some considerable extent. Our client was not responsible for this. He has continued to work hard, autonomously, and diligently in the face of all adversity and hurdles. However, he feels that the above outside factors have contributed to a negative perception of his performance. He has made a positive contribution as the Head of [name of department] and indeed throughout his 12 years of employment progressed and his ability and contribution being recognised resulting in him being appointed to this position in [date 1 year ago].

Redundancy
We are instructed that his line manager: the Director of [name of business function] left in [date 1 year ago]. The decision has been made to restructure that directorate and a new role has been created of Director of [name of new role]. It is intended that the Director will oversee our client’s team thereby making his position “redundant.”

Whilst our client has interchangeable skills with others, the organisation has failed to take any steps or engage in any exercise to identify relevant employees who are likely to be affected by the redundancy which should have included all the individuals with interchangeable skills, for example, Centre Manager/ Head of Centre. These should have been included in a properly identified selection pool. In fact, all other persons who have interchangeable skills with his and/ or do similar work should have been included (whether superiors or subordinates) and an objective selection criterion applied to select who may be redundant from the relevant pool. Instead, he was singled out and the organisation took no steps to establish the pool where the selection should take place.
There simply has been no consideration of the numbers of people involved, selection process, or “bumping.”

Suitable Alternative Role
The primary aim for any employer/ reputable organisation should be to facilitate the retention of skills within the organisation, to retain jobs and employment opportunities and ensure commitments to the redeployment of displaced employees are met. In line with this, there should be commitments that suitable vacancies should in the first instance be made available to redeployees before they are available to other candidates. Redeployees who apply for a vacancy should be considered for that post before other candidates’ applications are progressed. If a redeployee is deemed to be suitable for the role the recruiting manager is obliged to appoint the employee even if there could, potentially, be “better” candidates in the open process.

We understand that the newly created role of Director of [name of new role] has been filled by an external candidate. We are instructed that our client has the job specification and profile and applied for this position. He was not even shortlisted for an interview. This new role also involves heading up another area of the business as well as his, but he has not at any stage been given the opportunity to discuss the other area or to prove that he can manage both competently.

This was surprising as he had applied for a previous role of Director of [name of role] and had been shortlisted as one of the top 3 candidates. The skills and requirements for that role are not dissimilar to this newly created role. Our client has been provided with no feedback as to why he was not selected. He has the necessary skills and experience.

We are further instructed that there are three other roles that he may be/ have been suitable for. He was only given the opportunity to apply for [name of one of the other roles] when it was at the lower level until he was informed it had been taken off the table and filled at director level by one of the candidates for the Director of [name of new role] position.

You will be aware that there is a positive onus on an employer to offer roles that are suitable including considering and offering to train skills gaps to enable that role to be undertaken. Instead, the business has failed to take proactive steps to avoid his redundancy and to consider whether there are other roles available that would be suitable for him, including considering roles that are not actually vacant which he could do. You as an employer have failed to take account of the skills and experience and therefore consider “bumping” redundancy to retain him.
In summary, he has not been invited to discuss this newly created role of Director of [name of new role], his suitability, his application and reasons why he was not even offered an interview for a role that matches his skills and experience.

Consultation
We are further instructed that the consultation surrounding his redundancy was not meaningful or adequate. No real or meaningful consideration was given to his entirely reasonable suggestions which included: seeking to understand at the first consultation meeting how a decision has been reached to outsource marketing activities, whether that was the right decision and if there was any evidence to support that this is and will be a viable and successful alternative and the details of the rationale for it. He received very little response which did not address the matters he had raised.

In the absence of the above, he sought to discuss ways of avoiding redundancy and in this vein, he proposed an alternative restructure solution, prepared a supporting business plan which contained details of industry averages and suggestions of how to improve the current performance.

All these steps were taken as a means and with a view to have a proper, purposeful and meaningful consultation seeking to avoid redundancy. Each attempt made by him was rejected outright without due consideration or any meaningful or proper discussion and or was ignored or repressed. He feels that on each occasion he was “just shut down.” Consultation must be with a view to reaching an agreement.

The Acas website clearly states that in any good practice “consultation involves taking account of as well as listening to the views of employees and must therefore take place before decisions are made”. In his case, key and critical decisions had been made to restructure the business and thereafter no due consideration nor discussion of his suggestions/ proposals.

Our client also raised valid questions as to who would manage his team. He is fully aware that the newly created Director of [name of new role] (given the other responsibilities of heading up another area of the business as well as marketing) will not be able to oversee his team. When he questioned this further, it transpired that steps would be taken to review the hierarchy of the remaining team members: effectively therefore one of the remaining team members would probably be given greater responsibility to manage the rest of the team.

This supports the fact that his position is not redundant and in fact, his work will effectively be undertaken between the new hire and the subordinate. We are further instructed that the effect of this is (given the salary of the new appointment and the likely increment to his subordinate) there will be no cost-saving.

This flies in the face of a genuine redundancy process, as it is clear that his role is not redundant at all. In the circumstances, my client now faces potential unemployment for an unknown period. We are instructed that given where he lives, the prospect of finding suitable alternative employment will be a difficult and lengthy process. He considers the entire redundancy to be manufactured in his respect and the treatment he has received he considers unprofessional given his years of service building up his area of the business.

Current Position
The purpose of this letter, therefore, is to communicate on our client’s behalf his views about his proposed redundancy package from the business and the concerns that he has in that respect.

Firstly, our client believes based on what he currently knows that his redundancy is unfair both procedurally and substantively and he is prepared if and when necessary to claim unfair dismissal in a Tribunal. We are advising him on this process and the Acas Pre Claim scheme at present.

If our client were to pursue the claim above, which we certainly believe he would be successful in, we would envisage him receiving compensation equivalent to at least 6-12 months’ salary, bearing in mind the difficulty he will have in finding new work.

Thirdly, our client has reviewed the settlement proposal offered and he considers it extremely unreasonable and it fails to address a number of matters, which are set out further below. In fact, it only offers a derisory ex gratia sum of £1500: not even half a month’s salary. There is no incentive for our client to enter into a settlement agreement. He is entitled to a statutory redundancy irrespective of any settlement position.

In our view, based on the evidence we have seen thus far, our client would have sufficient evidence to support the claim above, which would attract a reasonable award of compensation given the issues and evidence in our client’s case.

Next Steps
Accordingly, whilst our client is content to pursue these claims further, he is also mindful of the time and expense it will involve, and he would rather try to resolve matters in a more amicable manner.
We are therefore instructed to propose terms for a Settlement Agreement which would provide for the following in addition to the amounts already stated in the current proposal:

• A compensation payment to reflect the contribution our client has made over the 12 years and the period it will take him to seek alternative employment. He seeks the sum of equivalent of a 6 months salary: £25,000.
• An additional sum of £500 should be added for loss of Statutory rights.
• An increased contribution to legal fees in the sum of £500 plus VAT.

We do not consider any of these requests unreasonable given the added value our client has given the business in the last 12 years and the profit opportunity that has been gained due to his work and client case.
We should be grateful if the contents of this letter could be seriously considered. Given the urgency of the matter and the imminent proposed termination of employment, we would welcome a telephone discussion today or tomorrow morning to discuss the above.

Please note that we reserve the right to bring this letter to the attention of the Tribunal in respect of costs, should our client be forced to pursue his claims.

We await hearing from you accordingly.

Yours faithfully

[Name of individual solicitor]