“They’ve advertised my job!”

I recently received a call from an individual needing some advice about his employment situation. He had seen his own job advertised, which had alarmed him, so he’d gone to talk to the MD. He was told that the company was restructuring to save money and three existing roles were going to be combined into two. This would normally be a redundancy situation but the company wasn’t minded to go through a proper selection process – they were just planning to replace him.

As he had less than two years’ service he wasn’t entitled to any Statutory Redundancy Pay, neither could he bring a claim for unfair dismissal. The MD denied it, but my client couldn’t help thinking he was being pushed out because he’d recently complained about his manager bullying him.

Short-circuiting the proper procedures

I wish I could say that this kind of situation is unusual, but sadly I’ve seen it all before. A competitor of one of my past employers regularly used a similar tactic, in their case to remove weak performers rather than to short-circuit redundancy situations. They just used to advertise the role, line up a replacement, and then give the job-holder two choices: sign a Settlement Agreement and leave with an enhanced severance payment; or bring an unfair dismissal claim and fight for compensation. Most people took the money and ran. It wasn’t right, but the company got away with it because it had the financial muscle to intimidate employees into accepting unfair treatment.

Doing it properly

Of course, organisations are entitled to remove people who are not good at their jobs, but they should go about it in the right way. The employee should first be told how they are failing to match expectations, so that any misunderstandings or issues beyond the person’s control can be uncovered and dealt with. Then they should be given the opportunity to improve.

Sometimes, what appears to be poor performance is not actually the employee’s fault. Maybe the targets or objectives have not been clearly defined or explained, or there has been a lack of training, or the employee has inadequate resources, or somebody else is failing to pass on information or cooperate in some way. Sometimes the targets are simply unrealistic and nobody would be able to achieve them. Just assuming the employee is no good without looking into the reasons behind the poor performance is not only unfair on that individual, it may mean that their replacement will also fail. Plus it drives up the organisation’s recruitment costs, so it’s not good for the bottom line either.

In my client’s case, the employer should have warned the three job holders that their jobs were at risk and carried out a fair selection process to determine who would stay and who would go. If my client really was the least capable of the three job holders they could have dismissed him without subterfuge or unfairness. It wouldn’t have taken very long or cost any more to do it properly, and he wouldn’t have felt so incensed.

Bullying

So what about the bullying? Surely it wasn’t right that his manager got off scott free while my client lost his job for complaining about it? Couldn’t he take them to a tribunal for that?

Alas, I had to disappoint him there too. Contrary to popular belief, “bullying” on its own is not grounds for making a complaint to an Employment Tribunal. Had the bullying been motivated by one of the “protected characteristics” under the Equality Act, e.g. had my client been gay or disabled, elderly or part of an ethnic minority, he could have brought a discrimination claim. But as an unremarkable British male, there wasn’t anything that would justify a discrimination claim.

It wasn’t a whistle-blowing situation, and the bullying hadn’t damaged his health to such an extent that he could bring a personal injury claim, so the law really wasn’t much help. I advised him to focus his efforts on negotiating the best possible severance deal with his organisation, and move on.

What about justice?

If you believe in justice, as I do, this story will have left a nasty taste in your mouth. What happened to this gentleman was clearly wrong, and yet there was very little he could do about it.

Had he been employed for more than two years he could have claimed unfair dismissal on the grounds that they had not carried out a proper redundancy procedure, and that they had breached their duty of mutual trust and confidence by advertising his role while he was still in it, and that he had been victimised for complaining about being bullied. Even then, he would have had to pay £1200 up front to see it through to a hearing – which when you’re about to lose your job is a lot of money. But because he didn’t have two years’ service, he couldn’t even do that. His employer was able to treat him badly and get away with it.

Sometimes life just isn’t fair.