Why your job is at risk more than ever before
Some companies looking to trim their wage bill are using underhand techniques to get unwanted employees the chop.
Saturday 12 December 2009
This winter, tens of thousands of people will lose their jobs. Many will be told that they are being made redundant as a result of the downturn when, in fact, they will have been targeted for the chop by bosses. Others will be fired for reasons that, in a time of economic boom, would otherwise be overlooked.
The office Christmas party season, for instance, could bring with it more than its usual share of dismissals of staff who get drunk and behave badly.
"You are probably much more at risk than you have been for many years," says Michael Burd, joint head of employment at solicitor Lewis Silkin. "Many more employers are under pressure to shed staff. If you give them a good reason, they may just jump on it."
Cases where employees believe they may have a grievance after losing their job fall into three separate categories:
* Employees who are told they are being made redundant when, in reality, their employer simply wants to get rid of them.
* Those who are dismissed in order to save employers having to fork out a large redundancy package.
* Workers who are dismissed after allegations that they stole from their employer.
Employment lawyers believe that many organisations are setting up their redundancy programmes – and, particularly, the "multiple matrices" used to rate and select staff – in order to weed out specific members of staff.
"It is very easy to produce a scoring procedure working backwards," says Jim Lister, head of employment at solicitor Pannone. "Lots of the matrices I see are eminently challengeable. Companies are dressing-up personal hunch as being something scientific."
James Davies of Lewis Silkin agrees that many employees who are seen as difficult or poor performers are swept out of the door through redundancies.
"In these cases it is actually easier and safer to dismiss for redundancy than to dismiss for performance or conduct," he says. It can take a year to get rid of an underperforming employee if employment law is followed to the letter. However, in a redundancy programme, that person can be lined up to go in a few weeks.
Redundancies are now running at a rate of about 70,000 a month, according to the Office for National Statistics, but fewer people challenge their redundancy selection than employment experts would expect.
"There's a certain fatalism in the current climate," says Jim Lister. Some may have their own reasons not to challenge – such as another job lined up or a recognition that they were not pulling their weight. Others, with a genuine grievance and the will to stay on, could challenge and even win the right to keep their employment.
Mothers, for example, can claim they have been marked down in the redundancy process because they have caring responsibilities, while older workers who think they are being pushed out because of their age should put their case to their human resources department.
In cases of redundancy, the employee will, at least, have the compensation of a payoff (if they have worked with the organisation for a year). In contrast, cases of summary dismissal are more painful because an employee loses their job and also ends up with no payoff, no reference and a feeling of shame.
"Brian", an adviser in a local advice agency who prefers to remain anonymous, hopes to get significant compensation for a client who was fired on the spot for having smoke on his clothes. His employer had banned smoking on the premises and the employee had breached this rule.
Brian says: "Their response was quite disproportionate and they did not follow their own [disciplinary] procedures."
If this particular long-standing employee had been made redundant instead, he would have got a large payment marking over 20 years' service. Brian adds: "We only see the people who come to us. I just wonder how many people assume there is nothing they can do."
Dismissed after allegation of theft
In a report called Unreasonable Demands? published last week, Citizens Advice highlighted another problem: staff being dismissed after allegations that they stole from their employer.
The report, which claimed that a host of high-street giants seek hundreds of pounds in compensation payouts from petty shoplifters using the civil recovery scheme, revealed that a third of the cases seen by Citizens Advice Bureaux (CABx) related to employees.
Citizens Advice claimed that some retailers and large companies fired workers for stealing sums as small as £5 and, sometimes, in cases where the person had denied any criminal intent.
In one case, "Alan" was dismissed by Tesco in March 2008 after he left a store one day with a carrier bag containing books and aftershave worth £20. Even now he cannot work out what happened and why he did this. "I wouldn't have done it on purpose," he says.
"Alan", who had worked at Tesco for eight years, had been undergoing tests for cancer as well as suffering from depression. The police were called and cautioned him but decided the incident was "out of character".
Shocked, embarrassed and jobless, "Alan" began to apply for jobs again but his confidence was knocked back a year later when he received demands from a civil recovery litigation firm representing Tesco asking him to pay his former employer £187.50.
Still suffering from depression and living on state benefits, he managed to get the payment issue postponed. But that postponement finishes next Friday and he is worried he will be taken to court if he does not pay. Tesco said it was unable to comment on individual cases, but a spokesman confirmed: "We still use civil recovery. It is about recouping costs."
The Citizens Advice report into civil recovery highlights the way employees can have their careers ruined in such cases. In the "vast majority" of cases, Citizens Advice says, there is no criminal prosecution and "in many" there is no police involvement.
In cases where an employee denies any dishonest intent, that person can still pay a high price. Many high-street chains use the civil recovery procedure and appear to be dismissing some staff without having evidence of criminal intent.
Richard Dunstan of Citizens Advice wants the law changed. "They have created a parallel criminal justice system," he says.
Getting fired up: What to do if you're faced with the sack
* If you are fired on the spot –or threatened with the sack – seek employment advice immediately. You can go to a Citizens Advice Bureau, another advice agency, a trade union or an employment lawyer – if you can afford one. If you are summarily dismissed by a hot-headed boss, it may be possible to retrieve the situation if you can speak quickly with cooler brains elsewhere in the organisation (in the human resources department, for example) but you need to act fast.
* Research your legal rights if the process becomes official – if you are fired or given a formal warning. Employers should, for instance, follow steps laid out in the Acas disciplinary code (www.acas.org.uk/dgguide). If they fail, for example, to explain clearly how you have transgressed and to let you respond and appeal, they can pay heavily if they are taken to an employment tribunal. "A lot of employers get it wrong procedurally and can be hoisted on that petard," says Michael Burd, a solicitor at Lewis Silkin. Even if your case does not go to tribunal, you can often extract a higher compensation payment if your bosses are patently unfair in the dismissal process.
* Negotiate hard if you decide to leave as the result of a dispute. Some employers, trying to save themselves the negative publicity associated with making redundancies, have told staff their work is not up to scratch and offered them a compensation payment. Although the average award for unfair dismissal at employment tribunals in 2008-09 was just under £8,000, some people will get far more than – either at the tribunal or through private negotiation.
The maximum compensation for unfair dismissal at tribunal is £66,200, and that figure will be used as a starting point in negotiations by many employment lawyers representing people wrongly dismissed or being asked to leave quietly. Someone earning £40,000 could be "looking at £35,000 to £40,000 in compensation", says Jim Lister, a solicitor at Pannone.
* Consider making a challenge if you are being made redundant and do not think it is fair. "Employees should, quite rightly, challenge any [redundancy selection] criteria that is very difficult to be objective about," says Jim Lister. So if you are being marked on items such as "attitude", "being a team player" or your "potential to develop", you could ask how these qualities are being measured. You can also ask to check your own scores. Mistakes happen: someone could be marked down as arriving late when he or she is visiting clients.
* Negotiate over your reference as well. Employers often agree to give positive references even in cases where someone leaves under a cloud.
* Be particularly careful if you are just coming up to one year of service. At that stage you acquire employment rights (including the right to claim for unfair dismissal) and some employers are tempted to sack people before they pass this milestone.
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