Working Life: When push comes to shove

When is redundancy not redundancy? When it's you they want to get rid of, not your job, says Bill Saunders

Redundancy has become an accepted fact of office life in the Nineties and, because the concept is so widely accepted, many employers are tempted to abuse it. For the lazy, the devious and the plain malicious, redundancy is a wonderful method for getting rid of awkward individuals or even settling scores.

Robert Andrews, 33, smelled a definite aroma of rat when his job in advertising production disappeared in a puff of smoke last February. He was among half a dozen employees to go when a magazine folded but, while he had been with the company for four years, a colleague who had been there for three months was found another job. Under the circumstances it was difficult not to cast his mind back six weeks to the office party.

"I danced with a woman who was widely known to be sleeping with the managing director," he recalls. By all accounts they were an eye-catching couple. "She was wearing a backless dress," says Robert, "and I suppose we were dancing very close together. I was certainly teased about it the next day. Unfortunately I lost my balance in the middle of a dip and we ended up in a tangle of arms and legs, at the feet of our boss and her lover. It may have had nothing to do with it at all but when I got the push I couldn't help wondering."

Phoney redundancies "are relatively simple to spot", according to Amanda Galashan, an employment law consultant. It is a reflection on the state of the economy that over the past few months some of the cases she has handled have been genuine redundancies, "for a change".

Redundancy, as opposed to a sacking, can be a face-saving exercise for both parties. And for lazy employers redundancy also has the appeal that it is apparently far simpler than dismissal. Many employers, says Ms Galashan, "can't be bothered" with the time-consuming business of correct disciplinary procedures. Apart from cases of gross misconduct, the law requires that employees are given the opportunity to improve their performance before they are dismissed.

It is far simpler to pretend that the job no longer exists, and then perhaps salve the conscience by paying slightly more compensation than strictly necessary. Simpler but riskier, because if a tribunal decides a redundancy is in fact an unfair dismissal, compensation can run to pounds 12,000 or more if there is an element of sexual, racial or disability discrimination involved. It is, as Ms Galashan says, "an expensive way to try to be nice".

Pregnant women in particular are likely to find themselves in the firing line. Redundancy was the last thing on Judy Lewis's mind when she was called into a meeting with a director at the merchant bank where she was working towards the end of last year. She had enjoyed a successful, even meteoric, career there over the past five years. She had other reasons to feel optimistic about the immediate future too because she was six weeks pregnant.

When she arrived, the meeting room was empty. Unconcerned, she rang to check she was in the right room. She was told to wait where she was. It was 4pm, school fetching time. With no reason to think anything was wrong at work, her mind turned to her husband who was collecting her daughter from nursery. Alone in the meeting room she became convinced that they had been involved in an accident and that she had been called away from her desk so the news could be broken to her. She panicked and began to hyperventilate. It was only when the director arrived accompanied by a personnel officer that she realised she was to be made redundant. After she had been frog-marched out of the building in the traditional City manner she began to feel stomach cramps. Her baby had died in her womb.

While Judy's case is especially horrible it is by no means unusual. The practice of discarding pregnant women under the guise of redundancy is, says her lawyer, "widespread, although it is by no means easy to prove".

In larger companies phoney redundancies are tricky, however, because an employer must explain why an individual has been singled out according to clearly defined criteria. In Judy's case, for example, it is significant that two colleagues in her department were found jobs elsewhere in the bank.

Redundancy criteria are difficult enough at the best of times. The BBC has just issued a contentious set at its Pebble Mill studios in Birmingham. At issue, as it always is, is whether the points that add up to redundancy are subjective or objective. The BBC wishes to include such vague factors as an individual's contribution to the business and, worse still, his or her acceptability to outside suppliers. All of which, contends one insider, are purely subjective judgements.

Employers who deliberately play a dirty game are likely to come unstuck, according to Ms Galashan, for the simple reason that it is very difficult to tailor the criteria to match an individual and too easy to point the finger at the wrong person. And if the criteria are too blatantly biased, the process is self-defeating anyway. In any case an employer must be able to show that the company was unable to offer another job, a much harder task in a large company.

An employee is entitled to redundancy compensation only after two years' employment, which often leads to the astonishing coincidence of people becoming redundant after one year, 11 months and 29 days. It is a crude approach and a stupid one too. "Employers should be careful playing that game," says Ms Galashan, because the notice period counts as part of time served and can be paid off in lieu only if the original contract says it can.

Judy's former employer is contesting her claim for unfair dismissal, which is quite rare. Apart from the risk of paying compensation, there is the fear of bad publicity even if they win. Then, says Ms Galashan, there are legal costs. In the field of sex discrimination there is no limit to the compensation a tribunal might award. "It is our strongest card," says Judy's lawyer. "The majority of cases settle."

And settle quietly too, which is why employees are often in the dark about their legal rights. It is the difficult cases which generate the publicity. If your job is currently on the line, it is worth remembering that your employer does not necessarily have the last word on whether you stay or go.

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