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Voluntary vs Compulsory
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# 1
FleetFanatic
Old 23-04-2009, 2:36 PM
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Default Voluntary vs Compulsory

Can an employer offer voluntary redundancy at a rate lower than that of compulsory redundancy?

The story goes like this..... I am ex-British Rail staff, protected by TUPE.
No new contract has ever been signed by myself, so as such, my terms and conditions mean that I am entitled to 2 and a half weeks pay for every year of service. The company asked for anybody interested in voluntary redundancy to inform them, which several of us have. Prior to my enquiry I even asked if safeguarded staff stil got a higher amount & the reply was yes, although the exact "higher amount" wasn't stated in the reply.

They have come back with offers of only the bare minimum statutory redundancy, saying they only have to honour our contracts in the case of compulsory redundancy.

Unions say this isn't correct, but the company are adamant. You would have thought, like most companies do, that they would want to offer an attractive enough package to make people take it?

I have a meeting tomorrow to discuss my own personal situation, but I can't help feeling that they are not allowed to discriminate in this way and still have contractual obligations, whether redundancy is voluntary or compulsory.

What I really need is something in black and white stating that redudancy is redundancy, regardless of its form. Which is why I am now busy trawling the net for examples!
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# 2
MrsTinks
Old 23-04-2009, 4:12 PM
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In voluntary redundancy they can make whatever offer they like really... Because you DON'T have to take it You on the other hand can go back and state that you don't feel it's an appropriate offer and instead present your own suggestion (of frankly whatever you want!) and they may or may not agree it... if they don't you remain employed and haven't lost anything surely?
If this is the first stage of redundancies then they have nothing to loose by offering lower payments so long as they are within the legal minimums
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# 3
silvercar
Old 23-04-2009, 4:46 PM
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They can offer what they like, but they cannot enforce as that would be compulsary and then you would be entitled to the higher of your statutory rights and the legal entitlement.

So you may think, why would anyone ever accept a voluntary redundancy package that gave you less than your contract. The answer is in the timing (eg voluntary redundancy could allow you to leave this year rather than wait for a possible compulsary redundancy next year) and in the soft benefits ( eg retraining packages, garden leave, keeping of private health/ company car etc).
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# 4
FleetFanatic
Old 23-04-2009, 6:28 PM
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Thanks for the replies. The issue is that our protected terms and conditions actually has a seperate section for voluntary redundancy, where it then goes on to list (identically) the same enhanced terms!

Interestingly, it also dictates 16 weeks lieu of notice as opposed to the government guideline of 12.

The thing is the difference in payment between what they are offering & what (imo) it should be is over 10,000.
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# 5
ceridwen
Old 24-04-2009, 7:12 PM
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That is confusing then.

Normally it is indeed the case that "voluntary" terms are whatever-the-employer-likes - as people are free to choose to "volunteer"or no.

But - since, in your specific instance, you say that you have something in writing which lays down that the money is the same either way - then I guess you have more of a problem as to what to do. Have you got any access to consult a solicitor in any way?

In reply to silvercars point as to why would anyone take voluntary terms - usually because there's been so much "arm-twisting" and pointing out "penalties" of some description that the employer might go in for if they dont "volunteer" that their will is broken and they cave in and "volunteer" -when, all else being equal and them being treated as per normal, few people would really volunteer.
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# 6
dampsquib
Old 30-04-2009, 2:51 AM
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When employers offer voluntary severance schemes and claim, "as it's only voluntary (& you don't have to apply), we can dictate the terms", it sounds very plausible, and you can be easily taken in by the offer. I used to work in a public sector concern which had been TUPE'd over the fence into the private sector and when the employer wanted a cull of staff, they tried the same tactics. It turned out that our compensation terms covered all possible voluntary schemes, and the employer couldn't start creating their own offers, but arguments rumble on about interpretaion of the rules.
Another area to be wary of, is where the employer tries to ignore pre-TUPE-transfer service, where pension funds were left in the previous employer's scheme. European Court of Justice case law has confirmed that the employer has to honour "all service" when determining compensation due.
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# 7
maninthestreet
Old 30-04-2009, 8:36 AM
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No one is going to volunteer for redundancy if they can get more money by waiting for compulsory redudndancy.
"You were only supposed to blow the bl**dy doors off!!"
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# 8
MrsTinks
Old 30-04-2009, 9:00 AM
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Quote:
Originally Posted by maninthestreet View Post
No one is going to volunteer for redundancy if they can get more money by waiting for compulsory redudndancy.
Unless like what happened where I worked once a bunch of us already had jobs lined up and no-one wanted to be left behind to do the work of 12 people on their own We lost about 10% of the compulsary redundancy but all started new jobs in the following few weeks - the couple that didn't ended up with no jobs to go to but 10% more redundancy... Personally I was just glad to be out of there
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# 9
FleetFanatic
Old 04-05-2009, 8:01 AM
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Cheers for the replies. Interestingly, the employer has come up with a new excuse to justify it, namely that when we were restructured into new grades, that ALL our terms and conditions went to harmonise the workforce. However;

1) It then goes on to mention if there is a conflict between the new and old conditions (how can there be a conflict if you've done away with the old ones?????)

2) As there is no mention of voluntary terms, there is no conflict and as such the existing old terms should automatically apply.

The unions quite rightly have said, the new terms were not detrimental in any respect, it is merely managements attempted interpretation of it that is causing the problems. You have to consider the fact that since privatisation, we are now on our THIRD different employer, with our rights transferred each time.

The best thing of all:
The employer has quite openly stated that the new terms were in an effort to "harmonise". This is clearly a breach of "tupe", as change is not allowed for the mere want of harmonisation & the employer has clearly stated that it WAS the intent.

This means the whole document is null and void - so we then have to refer to the old terms anyway!

The employment tribunal will be hearing about this, no doubt about it!
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# 10
ceridwen
Old 04-05-2009, 5:19 PM
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Sounds like that might be the only route left open to you - ie the Employment Tribunal.

From what you say - someone is interpreting the terms to be what they WANT them to be (rather than what they actually are) - and I think it will be necessary for this to go to the Tribunal to see what was actually agreed at the time you were TUPE'd over.

Good luck.
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# 11
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Old 04-05-2009, 5:53 PM
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I think you'll struggle at an ET, simply because we are looking at voluntary redundancy terms. However this is not my area of expertise. Contact the Employment Tribunals public enquiry line on 08457 959 775 or ACAS helpline on 08457 474747.
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# 12
Wookey
Old 04-05-2009, 6:15 PM
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One thing to watch is if you have mortgage protection insurance, accepting voluntary redundancy could well mean that any insurance you have to meet mortgage payments would be null. One good thing about voluntary though is if you have another job lined up, you can agree a finish date and then start a new job right away, with compulsory they will most likely give you a date and that would be it.
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# 13
LittleVoice
Old 04-05-2009, 7:59 PM
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Why accept voluntary redundancy with a lower payment than statutory?

One would be if you really don't want to continue working for the business and don't want to be left there (survive the redundancy process) because they have been able to shed sufficient numbers of staff without, or with limited, forced redundancy.
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