Dismissal versus redundancy from a consulting / outsourcing role

Question

A family member works for a large consulting / outsourcing company and has been permanently employed by them for many years, working for multiple different clients over this time. When one client assignment comes to an end he uses the employer's internal jobs board to find a new assignment.

Late last year he started a new assignment, but a few weeks in the client decided that his skills were not well matched with the tasks they wanted him to do and requested that a new person be assigned to the role. He was withdrawn from the role and his employer provided the client with a new person instead.

At that time he was given written notice by his employer that he was now "in a Consultation process" and if he could not find a new assignment within some period of time (as far as I know, no set time frame was given in writing, but verbally he understood that he had about 6 weeks) then his employment would be terminated "on the grounds of skills mismatch with the current role."

They also verbally used the word "redundancy" but have subsequently retracted this and stated in writing that the role (with the specific client that he was withdrawn from) is not redundant, the work is ongoing and another person whose skills are better matched has filled that role.

He then continued looking for alternative assignments and spent time doing various training courses to broaden his skillset. Unfortunately he was not able to find another assignment that matched his skills within the time frame, and his employer has now given him notice.

To my mind (and from https://www.gov.uk/dismissal/reasons-you-can-be-dismissed ) there are two ways they could have done this:
- redundancy (not redundancy from the specific assignment he was withdrawn from, but redundancy from his outsourcing role in general if they no longer have any roles that need his skillset) - which would entail a redundancy payment
- dismissal due to "Not being able to do your job properly" - in which case he should have been through a disciplinary process etc., which he has not.

I also work for a (different) consultancy firm and in my company we would definitely class this as redundancy and would pay a redundancy payment. The issue would be ours in that we would not have any suitable work for someone with his skillset, not that he was unable to perform the specific role we had originally allocated him to.

Is my understanding correct? Assuming that he would be happy with an outcome of either a) having his job back and waiting until a role that matches his skillset comes along, or b) being paid a redundancy payment, what should be his next steps?

Answer 1

For a dismissal to be lawful it must have been done "fairly".

If the circumstances are as described in the question, then it is difficult to see how this dismissal is "fair".

It seems like it should be a redundancy, in which case the person is entitled to (at least) statutory redundancy pay having been employed for "many years" by the same employer, with notice and accrued holiday (in days off or pay). But the employer has explicitly stated that it is not a redundancy. In which case, what kind of dismissal does the employer say it is?

It seems worth contacting ACAS (freephone) and perhaps a high street solicitor. The solicitor may charge £250-350 for an hour or might offer a free initial consultation. Either way there will be a list of options that might be pursued. Even statutory redundancy pay is worth having if the person has been employed for many years.

I wonder if the person is considered to be a worker or contractor by the employer rather than an employee? Just for this kind of eventuality! In which case it may be more complicated but it is important to understand that 'the totality of the circumstances' sometimes matters more than what a piece of paper says. If the person worked for this company full time for many years then I think a tribunal or court would consider him an 'employee' (as opposed to say a 'worker'). If he was provided work by the employer, he had to do the work, he could not send someone else to do the work on his behalf, and the employer paid him for the work, then he was an employee.

https://www.acas.org.uk/checking-your-employment-rights https://www.gov.uk/employment-status

Answer 2

The person has probably been made redundant

These are the reasons you can lawfully be dismissed in the UK.

The possible reasons that fit the person described are:

• Not being able to do their job properly: however, there doesn't seem to have been any disciplinary action about this.
• Redundancy: this is the one that fits. The employer simply has no (suitable) work for the employee to do. That's pretty much the definition of redundant.