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Ben Jones
Ben Jones, UK Lawyer
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Further to my last question. I was returnjng frim mat leave

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Further to my last question. I was returnjng frim mat leave on 25 june), applied for flex work of six months remote, it was declined and having appealed they have told me it was never a role suitable for remote working. I feel they actively encouraged me to spend my stat flex work option on this as between as he person told me A (Line manager) said I could do the job. This flex with request followed months of employer insisting my old role existed (it was not part of original meeting, other roles discussed, hr took action to look for other roles) - I feel this was their attempt to close this out. I also told them about RRMS (condition which I understand to be a disability) just before flex work meeting. I appealed outcome as disagreed with bus reasons x3 and also as the run up did not leave me thinking they had taken seriously and as it turns out they actively suggested I spplyfor a role that could never be worked remotely. My appeal timetable and their response took up all of an almost simultaneously run at risk of redundancy process. I ask them to review clashing timetables which they did with no definite date but after my appeal ref flex work outcome was rejected (feedback limited and selective only answering serious for example from point of where I appealed and ignoring preceding ) and creative dismissing concerns that they said I said I would be breastfeeding my son (which I did not) as something they would put in a standard communication is including details regarding on site facilities and saying the six month maximum (which I said was max and could be shorter as request relates to weaning my hypoallergenic son) that they said I had requested with no flexibility was actually interpreted from a business continuity perspective. I now have five days to appeal, they have done a bare bones consultation, they only started sending vacancies a little while back, and now tacitly agree my role was poss made redundant when the person covering was let go after six months (they initially explained that that person was let go from her own redundancy position created six month priority and she covered my mat leave - irrespective of her situation as my cover she was left go and no one doing my old role.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What is your specific query in relation to this situation please?

Customer: Has my employer discriminated against me ie would it be worth appealing the redundancy
Hello, sorry I was offline by the time you had replied. There are two separate issues here - the flexible working request and the redundancy. The rejection of the flexi working does not mean a successful redundancy cannot be undertaken at the same time and the tests for each would be different and separate.

Assuming you are now appealing the redundancy you would have to show that either there was no genuine redundancy or a fair procedure had not been followed.

As far as the law goes, redundancy is used to describe a situation in which an employer decides to reduce the number of its employees, either within the business as a whole, or within a particular site or job role. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisations, relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason conformed to the statutory definition of a redundancy.

The Employment Rights Act 1996 defines a redundancy situation as falling within one of the following circumstances:

1. Business closure – where the whole of the employer’s business is closed
2. Workplace closure – closure or relocation of one or more sites
3. Diminished requirement for employees to carry out work of a particular kind.

Whilst the first two reasons are self-explanatory, it is the third reason that will be used most commonly and also the one that brings the most challenges.

Examples of when there is a diminishing responsibility to do work of a particular kind are:
• There is the same amount of a particular kind of work but fewer employees are needed to do it. This would generally be seen as the "classic" situation in which the employer decides to make better use of its resources. This will also include consolidating some of its jobs (e.g. spreading out the work that is affected amongst existing employees). This is where many employees get confused as they believe a job has to disappear for them to be made redundant, however that is certainly not the case.
• There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
• There is less work of a particular kind, but the same number of employees are required overall.

So initially you need to consider whether your situation falls within any of these. After that it is a case of deciding whether a proper procedure has been followed. That would involve fair selection (unless you were the only person doing the particular job), consultation (this needs to be meaningful and discuss the reasons for the redundancy and also what alternatives there are), offering you any suitable alternative employment that may exist and then offering you the chance to appeal. You have nothing to lose by appealing, the worst that could happen is they reject the appeal and the redundancy stands.
Customer: replied 3 years ago.
If I appeal is there a chance they won't give me the discretionary payment , its more than stat amount. I just don't want to end up if they decide to give me nothing not able to take them to tribunal as I did not appeal at this stage? There must be an impact in the respect of not appealing or is there??
The discretionary payment - were you entitled to this under contract, policy, etc? Did they officially promise it to you and you accepted to take it?
Customer: replied 3 years ago.
No the talked about on final redundancy. The enhanced version is definitely discretionary one. No I did not agree to accept it. My consultation period was flawed. They are looking for an alternate flex role but even they admit on call that hard to tell without engaging each mgr if this poss or not. as usually its known role like i applied for then flex dialogue. Told them me doing this from offline /externally with no inside track would be even harder. They only offered to assist as I said they hadn't until last week when I pushed for them to be a bit more participant in the process.
if the enhanced was discretionary, nothing due to you under contract or custom and practice and you had not accepted it, then technically they can withdraw it.

Whilst you do not legally have to appeal, failure to do so could impact any compensation you may get if you take them to tribunal and are not successful although if you had a good reason to show why you did not appeal then it may certainly be accepted by the tribunal and should not affect anything.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
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