Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 29th Nov 17, 9:48 PM
    • 9Posts
    • 0Thanks
    Woodie_Woodpeck
    Can an Employer Change a PILON Redundancy Agreement?
    • #1
    • 29th Nov 17, 9:48 PM
    Can an Employer Change a PILON Redundancy Agreement? 29th Nov 17 at 9:48 PM
    Hello,

    I was offered the below 3 options via a formally written email in relation to my 3 month notice period upon finding my role was being made redundant. I chose option 3 and my employer replied via email that they would make the necessary arrangements. However, between this email exchange and the date I was due to receive option 3 my previous employer lost their main investor so my employer chose option 2. Are they legally entitled to change the redundancy option? Is the exchange of formally written emails legally binding? Would I be able to get my owed money via an employment tribunal? I went through the ACAS process after finding that I did not receive option 3 and before I found out that they had chosen option 2. ACAS informed me that I should wait for the company to find the money because the company could go into insolvency and I would receive no money. I've since discovered that the company have been attending international conferences abroad and hiring for different role types.

    1) Receive a salary on gardening leave for my 3 month notice period together with accrued holidays but remain an employee of the business.

    2) Receive a salary on gardening leave for my 3 month notice period together with accrued holidays but remain an employee of the business until I found a new job with another company.

    3) Receive Payment in Lieu of Notice (PILON) equivalent to the tax-free amount I would receive via a salary for my 3 notice period together with accrued holidays via an ex-gratia payment. Under this scheme I would no longer be an employee of the business, be able to use my time as I wished, and free to take up any opportunities without chance of this payment being pulled back.

    Many Thanks
Page 1
    • getmore4less
    • By getmore4less 30th Nov 17, 6:26 AM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    • #2
    • 30th Nov 17, 6:26 AM
    • #2
    • 30th Nov 17, 6:26 AM
    Have you been put on notice properly with a letter saying your contract will be terminated at X date dues to redundancy?

    They can change their mind right up to the final termination date and the law is on their side as it favours any attempt to keep people employed.

    They can now, while on garden leave, still withdraw the redundancy completely.

    Might be an idea to get another job and invoke the clause that allows you to terminate early to get the redundancy paid if you think they are going bust.

    there is also counter notice which could have been used with option 1. but that can only be done within the statutory notice period.
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 2nd Dec 17, 10:23 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    • #3
    • 2nd Dec 17, 10:23 PM
    • #3
    • 2nd Dec 17, 10:23 PM
    Hi getmore4less,

    They did not send me a letter on paper in the post. Our communication was purely via email. I'll paste our full communication confirming the redundancy option below this message.

    Many Thanks

    On 26 Sep 2017 12:41, <Manager@XXXXX.XXX> wrote:

    Thanks Employee.

    Iíll make the necessary arrangements.

    All the best,

    Manager
    --------------------------------------------------------------------------------------------------------
    From: Employee
    Sent: 26 September 2017 11:06
    To: Manager
    Subject: Re: XXXXXXXX

    Dear Manager,

    Thanks for your time on Friday and for outlining the below options in writing. I would like to choose option three below.

    My current address is now XXXXXXXXXXXXXXXXXXXXXX if needed.

    Kind Regards,

    Employee

    --------------------------------------------------------------------------------------------------------
    On Monday, 25 September 2017, 09:29:54 BST, XXXXXXXXXXXXXXXXXXXXXXXXX wrote:

    Dear Employee,

    I write further to our discussion on Friday morning, the 22nd, when I outlined some of the changes at XXXXXXXX going forward.

    Whilst it was a difficult decision I can confirm that your position is now redundant and you will in principal not be required to return to the office to work your notice.

    We believe you now have three options with regard to your three month notice period and we will support whichever you choose.

    Option 1

    You remain an employee of the company but complete your notice period on gardening leave without requirement to attend the office unless asked.

    As you would still be an employee of the business I should clarify you would be expected to carry out any reasonable duties asked with 24 hrs notice, which may include time in XXXXXXXX.

    Financially on this scheme you would receive your usual salary for Sept, October and November, but on the December salary run you would receive a partial payment taking you to the 22nd which completes your notice. On this final salary run you would also receive payment for any accrued holidays.

    Option 2

    Similar to the above but we allow you to seek alternative employment and attend interviews during your gardening leave.

    Should you be successful in this process then we would allow you to terminate your employment early, without notice.

    Whenever this occurred XXXXXXXX would pay your salary and accrued holiday pay to the termination date and thereafter you would be in the employ of the new organisation.

    Option 3

    Under this option we mutually agree to terminate your employment on 22nd September.
    In the forthcoming salary run at month end you will receive your salary, net of the usual deductions, up to the 22nd, any accrued holiday pay and also, in lieu of asking you to work your notice, a further ex gratia payment equating to three months net salary.

    I understand your first months with us were subject to a special tax code which reduced your net pay, but going forward this net salary would be circa £3300/month.

    In the September payment therefore under this option you would receive the net pay to the 22nd, any accrued holiday pay, and an ex gratia payment of £9900.

    For sake of clarity under this scheme you would no longer be an employee of the business, be able to use your time as you wished, and free to take up any opportunities without chance of this payment being pulled back.

    Please come back if you require any clarity on the above. In the absence of such please confirm which option you would like to follow.

    Once again, I apologise for this situation and wish you the very best for the future.

    Best Wishes,

    Manager
    • getmore4less
    • By getmore4less 3rd Dec 17, 7:41 AM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    • #4
    • 3rd Dec 17, 7:41 AM
    • #4
    • 3rd Dec 17, 7:41 AM
    We believe you now have three options with regard to your three month notice period and we will support whichever you choose.
    ............
    manager
    looks to me this is what the manager thought and would support those options, turns out they failed to support the one you wanted and you are on garden leave.

    I am right in assuming you have been there less than 2 years, it is reading that way as there is no mention of redundancy payments?


    IN the absence of a proper formal letter of termination of employment it is not clear if the notice has started yet, the email could be considered part of consultation so not yet on notice, also it is back dating the termination as it is clear from the email on the 25th that the decision to notify you was not made at the meeting on the 22sept.
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 3rd Dec 17, 8:15 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    • #5
    • 3rd Dec 17, 8:15 PM
    • #5
    • 3rd Dec 17, 8:15 PM
    Hello getmore4less,

    Thank you for your reply. It is nice to discuss this with somebody with no bias. I worked for for just over 100 days at the employer where my role was redundant. I found and started a new role within 3 weeks. I will discuss all of the above with some solicitors this week during a free drop in session but imagine that my investigation and research is reaching the end of the road. I'll certainly be keen to get everything in signed writing on paper in the future.

    Many Thanks
    • getmore4less
    • By getmore4less 3rd Dec 17, 10:21 PM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    • #6
    • 3rd Dec 17, 10:21 PM
    • #6
    • 3rd Dec 17, 10:21 PM
    Did you raise the issue when the PILON did not happen at the end of Sept?
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 4th Dec 17, 9:20 AM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    • #7
    • 4th Dec 17, 9:20 AM
    • #7
    • 4th Dec 17, 9:20 AM
    Yes. I called and emailed them daily multiple times in the first week of October until they confirmed that they did not have the money due to an investor pulling out of the company between the email exchange above and the salary run at the end of September. They therefore asked me to wait until they have the funding. I called them a week later and then have emailed them on a weekly basis since then and have gone through the ACAS process but ACAS just confirmed that my employer was aware they they owed me money and would pay it as soon as possible.
    • getmore4less
    • By getmore4less 4th Dec 17, 9:42 AM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    • #8
    • 4th Dec 17, 9:42 AM
    • #8
    • 4th Dec 17, 9:42 AM
    You seem to be saying they are still offering option 3 with delayed payment.

    That is not what you said in your first post, there you said they chose option 2.
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 4th Dec 17, 6:34 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    • #9
    • 4th Dec 17, 6:34 PM
    • #9
    • 4th Dec 17, 6:34 PM
    Hi, they were still offering option 3 until they found out I secured another role and then I found they chose option 2 by receiving my P45 in the post with a different employment end date.
    • getmore4less
    • By getmore4less 4th Dec 17, 7:30 PM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    how do you know that have you asked where the PILON payment is or when it will be paid?
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 4th Dec 17, 8:13 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    Hi there,

    Sorry, I am not that I understand your question but I have a full email thread asking where the PILON payment is and when it will be paid. Does that help?

    Thanks
    • getmore4less
    • By getmore4less 4th Dec 17, 8:46 PM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    Have they acknowledged you are due the payment in any of these emails?
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 5th Dec 17, 8:41 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    They sent me an email once I received my P45:

    I write per your email to my receptionist below to clarify the position per our understanding.

    Your employment was terminated during a discussion with Manager which resulted in your leaving the company prior to the end of September.

    After this you were sent an email detailing options for which you chose one.

    By the time the wages were processed you received full months nett of pay for September which was contrary to your suggestion but for which you said nothing.

    This inacted one of the other two options, namely that your employment would be worked out on gardening leaving with the agreement that you would be given reasonable flexibility to secure alternative employment.

    Your Manager received a reference request, from, I believe, Company-X, which confirmed you had been offered a job subject to our reference, replied to positively, and that your start date would be 16th October.

    We accordingly considered you an employee up to 15th and paid you as such nett of taxes, issuing a P45 on that day.

    I trust this clarifies the situation.

    Regards
    However, I replied stating the following:

    As you can see from the email thread below, I have sent emails on the following dates:

    29 September 2017 18:10
    29 September 2017 18:24
    2 October 2017 13:29
    3 October 2017 10:15
    4 October 2017 09:12
    4 October 2017 09:31
    5 October 2017 10:18
    12 October 2017 18:09
    9 November 2017 09:32
    24 November 2017 08:16

    These emails complement the telephone conversations and an SMS, evidenced with screenshots within <Google Photos Link>, on the following dates:

    2 October 2017 09:08 1m50S Receptionist-X
    3 October 2017 10:11 0M33S Receptionist-X
    4 October 2017 09:06 0M52S Receptionist-X
    5 October 2017 10:01 0M39S Manager
    5 October 2017 10:03 5M11S Manager
    12 October 2017 16:04 1M09S Manager
    12 October 2017 16:42 0M02S Manager
    12 October 2017 16:44 SMS Manager
    12 October 2017 16:56 0M02S Manager
    12 October 2017 16:56 0M34S Manager
    12 October 2017 17:25 5M38S Manager

    This all complements the following ACAS Conciliation Process:

    22 October 2017 Notification for ACAS Early Conciliation
    1 November 2017 Certificate for ACAS Early Conciliation

    All of this evidence confirms that I have made a substantial effort to make Manager aware of the incorrect payments. The ACAS summary from 1st November below also confirms that Manager confirmed to ACAS that I am owed money.

    Please review all of this information and confirm your position in relation to my requests outlined via email this morning below.
    The SMS they sent me on 12th October described above contained the following contents:

    "Sorry XXXXX - reception not good where I am. Essentially negotiating with Key-Investor-X before we know where we stand. Will keep you posted. Manager"
    The summary sent to me from ACAS was as follows:

    I spoke with the Respondent yesterday, as per the Voicemail I left for you. The Respondent acknowledges some of the payment had been made to you and he will pay the other money to you as and when he has the funds to do so, if he gets the funding he hopes for this will be all cleared in one payment. If not, he will pay what he can and when, to ensure the business does not go into receivership, which is what he is trying to avoid, as that may result in you receiving no money from him.
    • getmore4less
    • By getmore4less 6th Dec 17, 5:03 AM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    Your employment was terminated during a discussion with Manager which resulted in your leaving the company prior to the end of September.
    if that was the Friday 22 Sept meeting the email on the 25th implies the final decision was made after the meeting and notified to you on the 25th.
    It could be implied that leaving the company does mean termination and that a PILON payment would be due.

    By the time the wages were processed you received full months nett of pay for September which was contrary to your suggestion but for which you said nothing.
    I suspect the payroll run had already started, do you know the cut off date? if you got the email 25th and replied it would be Mon/Tue of the last week of sept, when was pay day?

    They do acknowledge they got your choice.

    I think you need to confirm with them if they are going to pay out if they get the money or not.

    if they are, are you happy wait?

    if not or not happy to wait then you need to build the case and take it further ending up at ET or small claims, probably ET as this is not a simple non payment of wages there is the were they contracted to PILON.

    I think it is worth pursuing this.

    edit:
    (More than once they are saying the decision was made in the meeting on the 22nd were options discussed at that time?)
    Last edited by getmore4less; 06-12-2017 at 5:06 AM.
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 6th Dec 17, 9:12 PM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    Hi,

    I hope the following bullet points answer the questions above. Please let me know if not...
    • I imagine that the payroll had not already started when the manager confirmed that they would make the necessary arrangements on the 26th of September given that there are just a dozen or so employees in the company and the processes are very manual. The pay day was 29th September whereby the board members had to pay the salaries of the staff due to an investor withdrawing from their expected quarterly seed investment just before the pay day. I believe that I even provided the payroll person with my bank account details during the same week via my old work email account because they had to move all the staff to their own accounting process.
    • I asked them to confirm their position when listing the communications above and they have not replied. I am not sure what content I should write within an additional email that is different to my previous request. I believe that they will stick to their decision to choose option 2.
    • All of the redundancy options were discussed on Friday 22nd during the meeting to inform me of the role becoming redundant. I asked them to put it in writing which they did on Monday the 25th. I replied with my choice on Tuesday 26th.

    I am not really sure how complicated or painful the employment tribunal process would be. I tried to attend a solicitor drop in clinic today for free advice but realised that I should have arrived before the clinic began because they only had limited places available. The next clinic is in 2 weeks time. I wonder if I should approach a no-win no-fee solicitor.

    Many Thanks.
    • getmore4less
    • By getmore4less 7th Dec 17, 6:19 AM
    • 30,780 Posts
    • 18,386 Thanks
    getmore4less
    No win no fee if they win the fee will probably be more than you will get

    Remember you are only asking for 3 months less the 3 weeks they did pay you, around £7600. after tax and NI net will be less.(its says above the £3,300pm was net but you have another job so the tax will be more.)

    if smart they could also deduct the extra holiday pay you accrued in the 3weeks as you are back dating the effective termination date to the 22nd and you don't accrue holidays with PILON.

    if you want to use ET, you have 3 month less a day to file from the date you became aware.

    That will either 3 months from 22nd Sept or it might be the day you got paid Sept and the PILON was not included or might be the day you got the P45 15Oct?

    They may be stalling to go past the ET claim date.

    Not sure if there is enough there acceptable to a court that they have acknowledged the debt so keep trying.

    Stop emails and move to writing, focus on the bits that acknowledged the debt and reiterate that they have also confirmed this with ACAS....

    Include the gross amount you believe you are due

    As once you have that you have 6 years to recover from last communication.
    • Woodie_Woodpeck
    • By Woodie_Woodpeck 7th Dec 17, 9:14 AM
    • 9 Posts
    • 0 Thanks
    Woodie_Woodpeck
    How can I have evidence of written communications? I would have thought that the ET is the only option now if the solicitor fees would be significant. Alas I would love to know the law in relation to emailed communications without having received anything from them on signed paper.

    Thanks
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

3,027Posts Today

7,724Users online

Martin's Twitter