Employment tribunal advice

senwar

I recently posted the following thread but think I put it in the wrong subforum (https://forums.moneysavingexpert.com/discussion/2508177). So I thought I'd add it into here but also ask a few other questions. My initial post was:

Hi - wonder if anyone can advise me here. I've mentioned in a previous thread about this a while back but thought I'd put a new thread on.

Basically I applied for voluntary redundancy in November last year and was accepted in December with a finish date of 31/1/10. In December, I was provided terms that although I was happy with, I thought would have been more. However, it turned out the company advised that I was entitled to their standard (well enhanced) terms, and my previous company, of which I TUPE'd from 10 years previous, were not classed as one of the further enhanced terms companies. Fair enough, and I signed all the paperwork.

On the day before I left I was advised by our someone involved in the TUPE discussions way back that I should be entitled to terms as agreed under TUPE. I raised this issue by email on this day - didn't raise a grievance but asked for further clarification. The TUPE agreement stated the terms were valid for 2 years from contract inception 'at which time they will be reviewed under full consultation'. This never happened, hence the advice to raise this as an issue.

To cut a long story short, the company dispute my claim and say the terms are no longer valid citing the 2 year comment (but ignoring the consultation/review comment). As such I raised an ET1 and had it accepted.

The company have now responded through a solicitor stating the exact same - that the agreement was for 2 years only, but again do not mention anything about consultation and review. If they could provide evidence of when this was done, then fine, but they don't even refer to it. The response has requested a half day hearing (originally a 1 hour one was set up).

Now the other point they refer to is my signing of the paperwork in December, and in all fairness it does say full and final settlement on the paperwork. So, does this completely negate my claim, or given I believe I was given incorrect information at this time negate the signature?

I don't really want to go through the courts and to be honest, don't want the worry and the risk. Part of me feels I should really fight as they're completely ignoring my claim re: the review. As I say if they can provide evidence of when this was done, then fine.

Any advice? Appreciate I should possibly speak to a solicitor but I'm really limited for time at the moment. I'm also awaiting to hear back from ACAS following the companies response.

My main sticking point is the signing of the papers in December, and just wonder if I'm fighting a losing battle because of this?

It has subsequently come to light that the company admitted that the full and final settlement wording should not have been included in the letters (this is backed up by work council minutes, and is from August 09 and chased up in March 10 - my papers were sent to me in Dec 09).

So does this negate their comments that my signing of the papers effectively mean I have no grounds to raise this case?

I've spoken with a solicitor but been advised that as it has been raised via a tribunal I'm not entitled to the free advice and would need to arrange a 1 - 2 hour meeting with them. Obviously this will be quite expensive and I would not be able to claim this back.

Also, I've been contacted by the tribunal stating I need to provide my documents by 2 July (as do my former employer).

My claim is that I'm entitled to enhanced terms based on my TUPE agreement. My employer states this was ONLY valid for 2 years. The exact TUPE wording is

Should redundancy be required we propose the following redundancy payments: double the statutory minimum, based on actual salary with a cap of 18 months salary. This excludes any notice period due. This will be apply for 2 years following transfer, after which a review will take place with full consultation. This will take effect from 1st December 2000.

Review and consultation NEVER took place. So are the terms still valid, or does the elapsed time mean they are irrelevant? My opinion is they are still valid.

Also - my former employer are trying to say that the above terms only cover statutory pay - that is obviously incorrect as it refers to 'actual salary' so the statutory comment is obviously based on weeks.

Finally, my ex employer are arguing against the 'actual salary'. In 2004, flex benefits were implemented which means we were paid a reference salary covering benefits and a base salary (excluding your benefits). So for example a package of £25,000 includes pension, annual leave, car allowance, yet the 'base' salary could be £20,000. The company are stating 'actual salary' is the same as 'base salary'. Any ideas on how this may be defined? Actual salary to me is what you are 'actually' paid.

I apologise for the long (and duplicated post) but I'm struggling to get assistance. My contact who I've dealt with is off until the end of next week, and as I say, I can't really deal with a solicitor. I do have copies of my TUPE agreement, plus can get hold of details of the minutes etc confirming the full and final settlement should NOT have been in the letter. So its a case of proving whether the TUPE terms are still applicable because a review and consultation (nor change) occurred and what constitutes actual salary. I've already spoken with ACAS and am awaiting to hear back from them.

Any help would be greatly appreciated.

getmore4less

How any years do you have in total? 10y + previous employment.

You say the terms they offered were enhanced and good but not what they were.

how much worse are they than the old terms based on double stat so that is 2 weeks per year(3 for years over 41) but would cap out at 20y max which is 60weeks max making the 18month(78) cap redundant.

senwar

I had 20 years service. I've worked out that the difference is roughly 5k based on my final actual salary however I'm not sure the calculation is that straightforward. Plus it will take me over the tax free threshold so to me it's probably worth 3k max.

They offered double stat (capped at 12 months) but based on my base salary which was 8k per annum less than my actual pay (classed as reference pay). I believe this is what it will come down to the definition of actual pay.

The only difference is the salary my calculation was done on in comparing the two.

SarEl

TUPE is a highly complex area of law and not something that can easily be advised upon without sight of every single piece of paper. However, I would not be sanguine about your chances here. The courts are generally loathe to enforce TUPE protections so long after a transfer - in practice they will only enforce major terms such as this one for about two years, and many other terms are not enforced after 12 - 16 months. I would never suggest that anyone tried to take a TUPE case without legal advice, especially this long after a transfer. I would stringly suggest that you get some.

senwar

SarEl wrote: »

TUPE is a highly complex area of law and not something that can easily be advised upon without sight of every single piece of paper. However, I would not be sanguine about your chances here. The courts are generally loathe to enforce TUPE protections so long after a transfer - in practice they will only enforce major terms such as this one for about two years, and many other terms are not enforced after 12 - 16 months. I would never suggest that anyone tried to take a TUPE case without legal advice, especially this long after a transfer. I would stringly suggest that you get some.

Thanks. - will try and speak to another solicitor, I've only tried one at the moment.

getmore4less

Check for legal cover on your house insurance it might be there with you relalising.

Looking at what you have said, the service and basic double stat entitlement are similar.

Are they counting over 41 as 3 weeks or 2weeks, it should be 3 if the terms say double.

Does that take you total over 52 weeks?
If it does I think you should have that in the claim as well.

The problem you have is finding any evidence that the old terms did include the full reumeration, were people made redunant under those terms so you can get proof.

It was clear that the intention was to drop the old enhanced terms which in effect was dropping the cap from 18 to 12 months. if they had done any consultation this would have most likely been the result.

The other problem you have is that any other changes to your contract, promotions pay rises etc can effectifly put you on the new terms.

Now IANAL, but I think you may have a better claim by saying that not including the "packaged benifits pay" is the problem because Holidays are a statutory requirement and would always be included in any "Pay" used to determine redndancy.

So at a minimum I would be expecting pay in the package that accounts or holiday to be included in the redundancy calculation.

Now have there been any redundancies before this change in pay structure in 2004 and was the "pay" used in those cases well known, if it was then unless specificaly changed by the packaging of the benifits I think you could argue that that is still the expected terms of an enhanced redndancy what was included in any pay for previous redundancies.

Since 2004 have there been any redundancies on the new terms, what basis were they paid?

Not sure how you got £5k from the £8k package, you have a miimum of 40 weeks due so that would be £6154.

How much of that £8k is holiday pay?

jobbingmusician

Also, have you seen this thread (hope it is helpful!)

I know you don't want to go that route, but forewarned is forearmed, even to fight your case 'normally'.

senwar

jobbingmusician wrote: »

Also, have you seen this thread (hope it is helpful!)

I know you don't want to go that route, but forewarned is forearmed, even to fight your case 'normally'.

Thanks for posting this. I'll have a good read through it later today.

senwar

getmore4less wrote: »

Check for legal cover on your house insurance it might be there with you

thank you - never thought of this.

getmore4less wrote: »

Looking at what you have said, the service and basic double stat entitlement are similar.

Are they counting over 41 as 3 weeks or 2weeks, it should be 3 if the terms say double.

Does that take you total over 52 weeks?
If it does I think you should have that in the claim as well.

yes they've counted the double stat correctly, and i don't go over 52 weeks.

getmore4less wrote: »

The problem you have is finding any evidence that the old terms did include the full reumeration, were people made redunant under those terms so you can get proof.

I am led to believe people have left on the terms I am claiming for and we are awaiting copies of the details.

getmore4less wrote: »

It was clear that the intention was to drop the old enhanced terms which in effect was dropping the cap from 18 to 12 months. if they had done any consultation this would have most likely been the result.

They've definitely never consulted anyone - this has been confirmed.

getmore4less wrote: »

The other problem you have is that any other changes to your contract, promotions pay rises etc can effectifly put you on the new terms.

I've actually checked all my paperwork following pay rises and when I moved onto different hours and it specifically states all other terms are not affected.

getmore4less wrote: »

Now IANAL, but I think you may have a better claim by saying that not including the "packaged benifits pay" is the problem because Holidays are a statutory requirement and would always be included in any "Pay" used to determine redndancy.

So at a minimum I would be expecting pay in the package that accounts or holiday to be included in the redundancy calculation.

Thanks for this information.

getmore4less wrote: »

Now have there been any redundancies before this change in pay structure in 2004 and was the "pay" used in those cases well known, if it was then unless specificaly changed by the packaging of the benifits I think you could argue that that is still the expected terms of an enhanced redndancy what was included in any pay for previous redundancies.

Yes I believe there was and we are checking this at present.

getmore4less wrote: »

Since 2004 have there been any redundancies on the new terms, what basis were they paid?

Yes there's been quite a lot but not sure how many transferred via TUPE - and we believe this is also clouding the issue at my ex employer I.e. they're not fully appreciating the situation. However, we're also looking into this.

getmore4less wrote: »

Not sure how you got £5k from the £8k package, you have a miimum of 40 weeks due so that would be £6154.

I've used the redundancy calculator provided by the ex employer based on my actual pay. I'm 38, was in employment since 17 with 20 full years. My calculations have been based in reference pay of £40100 whereas my total pay was £48104.

getmore4less wrote: »

How much of that £8k is holiday pay?

Not sure to be honest - I need to contact my ex employer for a full break down of my salary.

Thanks for your post, appreciated.

senwar

Just an update on this. Spoke with an employment lawyer who advised me that I had sufficient grounds for a case and he could see both sides of the argument. Also advised me against representation due to costs v potential settlement.

I also spoke with the CAB who actually advised the opposite - i.e. they didn't think I'd win.

Have just been informed by ACAS that the company are not interested in consultation as a) they believe they will win, b) don't want to set a precedent and c) there is a similar case against them so they don't think its wise. So its all to the tribunal.

I don't really want to go to court but looks like thats the only way. What are the impacts of going to court and losing? The first solicitor said it was unlikely I'd be allocated costs as long as it wasn't seen a frivolous claim (which he believed it wasn't). What will be on my record going forward - could this affect future employment opportunities?

Googlewhacker

As far as I know all that would be affected would be your referance. Obviously if you request a referance of them they can tell the truth and say you tried to take them to a tribunal and lost.

Don't just take my word for it though obviously!