The pre-determined sacking

In their quest for raised profiles, employment lawyers and Human Resources consultants like to talk about the new legislation and how this is going to change the way we work – all well and good.

One of the issues that I come across in my capacity as employment lawyer and mediator is the pre-determined sacking.
Essentially, this is when an organisation embarks the dismissal of someone, frequently though not exclusively by means of redundancy.

Legally, the organisation embarking on a redundancy programme has three key points of vulnerability:

1. The employee can attempt to challenge the fairness of the reason of redundancy dismissal, proving that the reason for selection was an automatically unfair one (usually connected with pregnancy, trade union activity or the assertion of a statutory right).
2. Where the reason for selection is not automatically unfair, but the dismissal was still unfair, the employee can challenge because of the method of selection. This can often be that the employer did not use an objective method of selecting the redundant person.
3. Where there has been inadequate consultation. The organisation has an obligation to consult the employees. It will be a question of fact and degree as to whether the consultation is fair.

Beyond the legalities, there are often some redundancies that deserve to be challenged. I have come across so many of them; what are some of their hallmarks?

1. There is an underlying motive of resentment from a manager/management against the employee. This gives the motive for the sacking.
2. Often a catalyst is a ‘new event’ that bears no relationship to the ‘official’ decision to sack someone. This can be a new manager coming in and wanting to get staff out/just simply a desire to change the firm and pursue a new direction.
3. The person who has chosen to sack often has psychological issues such as deep-seated sense of inadequacy or subconscious need to create conflict.
4. The consultancy process (if the sacking is done via redundancy) does not have commitment to the truth within it. It is about posturing with the company emphasising respect for the individual, but not really doing it.
5. The victim knows whether he or she has been ‘had’. He or she is just trying to acquire the evidence to prove the truth.
6. More often than not, the company is bullish and at times complacent. When challenged, the company will present a picture of "Who do you think you are challenging the legality of what we are doing?"

Justin Patten

Justin is a commercial mediator accredited by the Academy of Experts and has been a fully qualified solicitor since 1997. Justin founded Human Law Mediation in December 2002, providing mediation solutions and training together with expertise in employment law. His firm’s website is at www.human-law.co.uk