Redundancy and Age Discrimination

Loft_monster

Hello,

I have just been made redundant and I am just about to enter my consultation period.

Now I am quite happy to leave but naturally, I want to get as much money as I can.

The redundancy package here states that if you are over 41 years of age you will get 4 weeks for every year and if you are under you will get 3 weeks.

Now I understand the Government statutory package has something similar but as far as I can see they are the only people allowed to discriminate.

So my question is can I ask them for 4 weeks for every year and if they say no will I have a case for age discrimination?

Many many thanks, I look forward to hearing your reply.

Pete111

You can always ask.....

......but on this I strongly suspect you will get a flat no. Government policy re statutory redundancy could well be argured to be a very strong lead to follow when creating company policy.

Not sure if there have been any test cases re this nuance of AD legislation however - others may know more.

Be aware also that if you kick up enough of a fuss here it is a very simple thing for the company to change it's policy to 3 weeks for all or even stautory redundancy pay only to be on the safe side!

P

Loft_monster

Thanks Pete,

They haven't changed their policy yet and surely they can't change their policy when I am already in negotiations?

From what I hear practically everyone under 41 tries to get the 4 weeks and some are successful and some are not. Somebody told me that if the company are not taking part in the Government scheme then they are not governed by it.

Does anyone know where I can get free legal advice on this?

Many thanks again.

Loft_monster

Hello everyone,

I'm going into my 1st consultation on Wednesday, is there anyone who can give me any advice on the 'age discrimination' issue?

Is it true that if your companies redundancy package is not the same or an enhanced version of the Statutory package then I may have a case?

For instance the statutory redundancy package only pays more for each year of service a person has worked at the company when they have been over the age of 41. Whereas the company I work for pays anyone who is older then 41 an extra weeks redundancy pay for each year of service, even if they are only 41 and have worked for the company for 10 years they will get an extra 10 weeks pay.

Please help if you can, many many thanks.

getmore4less

Loft_monster wrote: »

Thanks Pete,

They haven't changed their policy yet and surely they can't change their policy when I am already in negotiations?

From what I hear practically everyone under 41 tries to get the 4 weeks and some are successful and some are not. Somebody told me that if the company are not taking part in the Government scheme then they are not governed by it.

Does anyone know where I can get free legal advice on this?

Many thanks again.

Find someone who was successful and use them as an example.

If they don't go for compromise agreement ask for 4 weeks and then if they refuse a tribunal will probably decide for them seems fairly simple case if age rules are being broken..

Chances are they will settle before the tribunal so they are not forced to pay out to everyone who finds out who has been made redundant in the last 3 months.

Enhanced redundancy can be just about anything but should include at least the statutory payments either as a add on or included.

londondulwich

The statutory rules around age related benefits are deemed not to be discriminatory.

If a company departs from the statutory minimum for a redundancy payment the difference needs to be demonstrably linked to the legislative formula, otherwise any enhanced redundancy packages do potentially open themselves up to challenge.

The example given in the ACAS link below refers to a redundancy package based on length of service regardless of age.

The departure can only be more than the basic requirement, not less.

Example:

The employer wishes to give a months' pay for every year served instead of a week.

The employee aged 45 has worked there for 3 years.

The employee should receive 1 and half months' wages multiplied by 3.

If the employee was 34 and had worked there for 6 years he should get 1 months' wages times 6.

The guidance is below:

http://www.acas.org.uk/index.aspx?articleid=1044

McKneff

err excuse me but shouldnt that be 1 and a hlf WEEKS pay over 41 for each year of service Not months

and 1 WEEKs pay for under 41 for each year of service.Not months

Top line for a week is £380 as far as i know.

Thats what the government statutory minimum is

if they are giving you it in months i woud snap their hand off

Loft_monster

Fantastic, thank very much for the input.

I haven't actually consulted an employment lawyer yet, I'm hoping I won't have to, unless it gets to the stage where I have to file a compromise agreement. It appears that I could have a case on two accounts.

1. The companies enhanced redundancy scheme does not match the ratio of the Statutory scheme, therefore it is significantly different.

2. The Statutory scheme only pays out for the years of service over the age of 41, whereas the companies scheme pays out 4 weeks per year for the employee's entire service even if they have only just turned 41.

I'm not sure how I'm going to mention this in the consultations, but I'm in no rush to be unemployed so I don't want to mention it for a while.

londondulwich

Using the statutory formula route, the people who have a claim are those who are over 41, not the younger employees.

If the company had applied the statutory formula to its enhanced redundancy package an employee over 41 would be entitled to 4 and half weeks' wages. Instead they are getting only 4 weeks' worth.

The company has replaced 1 week with 3 weeks for the employees aged between 22-40.

It should therefore have replaced the 1.5 weeks with 4.5 weeks for employees over 41, if it were adhering to the statutory minimum.

As you are younger, and therefore get a better deal than your older colleagues, you cannot use that route successfully.

On the other hand, the longevity of service argument may result in less favourable treatment for those employees under 41. It's a question for the statitisticians. (How many employees over 41 compared to under, how many years have they served, what would they have got under the statutory scheme, is it very different etc...).

Debt_Free_Chick

Discrimination is not unlawful if it is objectively justified.

Ask your employer why there's a difference in the age-related rates of redundancy pay.

Loft_monster

Hello,

thanks again for the replies.

Londondulwich are you 100% sure I cannot argue about the ratio? The advice I have been given by somebody who was in the same situation as me told me an employment lawyer told them that because the ratio was not the same ratio as the government scheme, it is 'significantly different'. Does it really matter that older employees are getting a worse deal?

Can anyone add to this, I'm very confused what to argue now.

Many thanks again!