At first sight, some elements of the redundancy process that led to the tribunal claim in Wibaut v OP Mobility Exterior might have been perceived as well trodden ground. Was the initial warning about the process given in a manner indicative of a mind made up? Should the company, a UK subsidiary of a French multi-national, have considered “bumping” a colleague to save Mr Wibaut? Was the need to cut out his role adequately explained, and was he given a fair chance to apply for newly created roles? Been there, done that, we might reflect…
But that was not all. How could this dispute have generated the newspaper headline “French bosses not racist for ‘tolerating’ British worker”?
When Mr Wibaut’s fate was sealed, he ran two special arguments in support of his claim that his redundancy was unfair. First, that it was because he had made a protected disclosure about the treatment of his tax position. Second, because he was not French.
The latter involved a diversity session and a gala dinner. He claimed to have heard at the diversity session that he was “not liked, only tolerated”, because he was not French and did not speak French. As for the dinner, he complained about being ignored, because all the surrounding conversations were in French.
Malheureusement – sorry, unfortunately – for Mr Wibaut, the tribunal took the view that a claim for direct race discrimination in relation to the redundancy was nothing beyond speculation. His experiences at the gatherings had only provided the lens through which he came to view his predicament with the benefit of hindsight. In turn, he fell short of overcoming the public interest test for whistleblowing.
Mr Wibaut did at least manage to prove that his dismissal was unfair on procedural grounds; inadequate explanations for the removal of his role, no fair chance to seek one of the new roles, and an inadequate appeal. However, the tribunal took the view that a fair process would still have left a 75% chance of a fair dismissal.
It is often the case that a thorough and meaningful appeal will serve to cure any inadequacies in an initial dismissal procedure, whether the dismissal is fault free or fault based. Perhaps on this occasion, some timely independent legal advice would have spared the employer a defeat?
Are you weighing up an employee’s reaction to your redundancy process? Or are you facing redundancy when something does not quite add up? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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