A friend of mine

[megamaniac]

Crashed her works van(the second time in a year)last week, the following day they made her redundant(they told her they didn't want to sack her).This week they advertised for a new position in the business that she could have filled,which includes doing deliveries.
I told her i thought she had good grounds to claim constructive dismissal even though she has only been there for 15 months.
Any helpful thoughts?

[Alfa_75_Steve]

Sounds fair enough to me - they could have taken disciplinary action and fired her - better to be made redundant than have to explain that you're such a crap driver they sacked you for crashing the van twice....

[ridds]

Constructive dismissal?

Did they make her crash the van?

I'm sure she could try the whole "made redundant but there were jobs available thing" but they would say they would have just sacked here anyway for misconduct (might have needed written warnings for that though....).

[Westy Pre-Lit]

Look at it this way.

You have a company that uses vehicles which cost a lot of money to insure and repair.

Somebody who's been with you for 15 months keeps crashing your vehicles, costing you lots of money and time off the road and affecting your business.

What would you do? With a driving record like that it doesn't look good does it.

So long as the position isn't exactly the same in name and role, as far as I'm aware they have done nothing wrong in making her redundant. Had they fired her then there would be a certain procedures that must be adhered to.

Had she been fired it wouldn't look good when she applies for another job. Personnaly I'd have been less than impressed, I'd say they done her a favour.

Edited by Westy Pre-Lit on Sunday 28th June 09:10

[siscar]

On the description provided this is unfair dismissal. 15 months employment means that she cannot be dismissed without cause and one of the factors that makes redundancy unfair is the failure to make an offer of alternative employment. So if another vacancy exists and the person could fill that vacancy then they must be offered it. It doesn't matter whether the role is the same or similar if they would be capable of doing it.

It also sounds like they haven't gone through the proper process of consultancy in making her redundant.

So on the face of it she has a solid claim but whether it is worth pursuing is another question.

Alfa_75_Steve said:

Sounds fair enough to me - they could have taken disciplinary action and fired her - better to be made redundant than have to explain that you're such a crap driver they sacked you for crashing the van twice....

In law it's not fair enough, if there is a question over her competence she should be put through the disciplinary process which would probably not result in firing her in the first instance.

ridds said:

I'm sure she could try the whole "made redundant but there were jobs available thing" but they would say they would have just sacked here anyway for misconduct (might have needed written warnings for that though....).

Exactly, they would need to have gone through the process to fire her for misconduct/incompetence. So they are trying to get round that by using redundancy in way that, in law, is probably unfair.

[Westy Pre-Lit]

siscar said:

So if another vacancy exists and the person could fill that vacancy then they must be offered it. It doesn't matter whether the role is the same or similar if they would be capable of doing it.

But surely she has shown that she (in their eye's) she isn't capable as the job role will require deliveries using a vehicle.

Would they still have to interview her as a matter of course for legal reason ?

[Bloobird]

Westy Pre-Lit said:

siscar said:

So if another vacancy exists and the person could fill that vacancy then they must be offered it. It doesn't matter whether the role is the same or similar if they would be capable of doing it.

But surely she has shown that she (in their eye's) she isn't capable as the job role will require deliveries using a vehicle.

Would they still have to interview her as a matter of course for legal reason ?

That wasn't the reason they gave for getting rid of her though, so they can't use it as a reason for not considering her for another role. Were her position to be made redundant, they should have given her a consultation period during which they would see what other roles are available in the business. Had they done this she would certainly have been entitled to apply for the new role.

[Westy Pre-Lit]

Just because she's worked there for the last 15 months, doesn't mean she is capable of doing the new role through does it. The company is free to take on who they like.

We all know why she was made redundant, if the new job involved no driving I suspect the company would move her side ways if they were happy with her and big enough to do so.

However the new job role involves driving hence redundancy. She could probably apply a million times for the new roll and she wouldn't get the job. I'm pretty sure you don't have to tell each an every interviewee a breakdown as to why they weren't eligible for a job.

Edited by Westy Pre-Lit on Sunday 28th June 10:47

[megamaniac]

Thanks siscar and bloobird,i thought it was wrong, she had no verbal or written warning after the first accident.I will show her what you have both said ,it should help her decide what her next move is.

Edited by megamaniac on Sunday 28th June 10:49

[Westy Pre-Lit]

Sorry but just playing devils advocate here.

She hasn't been sacked she's been made redundant. What difference would any previous warnings make?

I'd have said it was probably because they liked her that they didn't give her a warning in the first place. Now they feel they can't justify her position in the company so are taking this route.

Edited by Westy Pre-Lit on Sunday 28th June 11:07

[Firefoot]

In reality they have taken action which gets rid of their problem and allows her to leave with a clean record. In law they have acted illegally looking at the information we have.
Where she goes from here depends on whether she wants to go to tribunal or not really.

Personally, As long as they paid the appropriate notice pay, I would take it on the chin as they were going to sack her anyway.

Edited by Firefoot on Sunday 28th June 12:05

[siscar]

Westy Pre-Lit said:

Sorry but just playing devils advocate here.

She hasn't been sacked she's been made redundant. What difference would any previous warnings make?

I'd have said it was probably because they liked her that they didn't give her a warning in the first place. Now they feel they can't justify her position in the company so are taking this route.

Edited by Westy Pre-Lit on Sunday 28th June 11:07

Yes but in doing so they have acted illegally (or so it would appear). The big mistake people make in employment issues is that they get mixed up between what feels right and what is the law.

Whatever their intentions, whatever their motivations you can't make someone redundant just to get rid of them, there is a process and a justification you have to go through and if you don't you are breaking the law.

[siscar]

Westy Pre-Lit said:

She hasn't been sacked she's been made redundant. What difference would any previous warnings make?

Lack of warnings means that firstly they couldn't just sack her, to do that would mean that what she did was gross misconduct and that is unlikely to stick. If she'd had warnings then they would be closer to being able to sack her on competence grounds.

The second issue is that if she is employed as a driver and hasn't had warnings about it then they can't use her lack of ability as a driver as a reason not to give her a job involving driving. If she'd had warnings about it then maybe they could.