Do I have a case for constructive dismissal? Ask the expert

Eighteen months ago I was touped across to another blue chip company. I have 23 years experience. Earlier this year my team and I were offered an incentive leaving plan (ILP) which equates to a years pay tax free. My whole team took the incentive which left me by default with no alternative but to accept the ILP as the company said they did not have a role for me going forward. The company wanted to merge my teams worktypes into another part of the business to consolidate it in one place, I was asked to support the transition and by doing that I was offered an extension to my employment by three months which takes me to the end of Jan 2011 instead of 31 Oct 2010. In the meantime this strategic change was cancelled as not viable in the short term and for me to then employ contractors to replace my full timers to carry out the exact job. I now have a team of contractors being trained up by the full timers ready for end of Oct. My manager has told me I will also be replaced by a contractor team leader next year when I go!!! Can you advise if the role is still ongoing, which it is, and they are basically replacing me with a contractor whether I have a case for constructive dismissal or because they are employing contractors this is allowable in the eyes of the law.

You have been informed that your employment is to shortly be terminated, due to redundancy. Redundancy can be a fair reason for dismissal, providing that:-

a. There is a genuine redundancy situation; and
b. The Company follows a fair procedure prior to implementing any redundancy.

There are arguments that the Company cannot fulfil either criteria. You have explained that your role is to be replaced by contractors. This therefore casts extreme doubt as to whether there is a genuine redundancy in the first place, given your role still exists.

Secondly, as part of a fair redundancy consultation exercise, the Company should discuss with you whether or not there is any alternative to redundancy. A recent case has held that an employer should be prepared to discuss with you the possibility of you working as a self employed contractor, as an alternative to redundancy if this is proposed by the employee. Therefore, if this is something that you are interested in, I recommend that you put forward this proposal to your employer.

However, you have explained that the Company is offering you an Incentive Leaving Plan, which equates to a year’s pay tax free. It is unlikely that you would receive compensation for unfair dismissal in this amount and therefore, despite my earlier comments, if the Company are offering this package to you, my initial advice is to accept it, as opposed to bringing a claim for unfair dismissal. However, in order to determine whether this is a good offer, this depends on other factors, for example, the amount of contractual notice that you are entitled to, and whether you will receive your notice pay on top of the year’s salary.

Please telephone me to discuss this matter further on 0161 975 3823.

Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.

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