Redundancy Query

Pinkdebster

Hi,

I wonder if someone could possibly give me some advice with regards to my redundancy?

In order to explain properly, I need to give you a bit of history!!! This is my second redundancy - I was made redundant in May last year from a Company that I had worked for 10 years. It was a large Company and they conducted themselves properly - I was given all the proper notices etc and full redundancy pay.

I was fortunate enough to find another job whilst I was serving my Notice period. Due to the nature of my job, I was on gardening leave and was able to secure the new job within the first month of my notice (I had three month's notice). The new Company wanted me to start straight away but I was reluctant to do this as it would mean foregoing my redundancy pay etc. Therefore, the new Company let me do some freelance work for them for a couple of months without pay until I started officially. I really wanted the job so I felt this was a goodwill gesture on part. I therefore started "officially" with the new Company on 3 August 2009, although I had been working "freelance" for two months prior to this.

I am currently off work sick - following open and major stomach surgery. The new Company have been paying me SSP (I am on a year's probation???!!!!)

On Wednesday, I received a letter from them telling me I had been made redundant. They have given me 3 weeks notice and my employment therefore ends with them on 13th August. I am not entitled to redundancy pay (which I knew) and they will therefore continue to pay SSP for these three weeks.

My question is.............can they do this? It is a small Company (the "Head Officce" is in Scotland where they employ 22 people and I work for a small office in the UK where they employ 6 people). They have made 3 people redundant in Scotland and just me in the UK. Oh, and they still have temp in my office covering for me whilst I am off sick!! I have had no notice of pending redundancy - just this letter telling me I have been made redundant.

I'm guessing they somehow have a "get out of jail" card because of this probationary period??

I would be grateful if someone could just give me some advice - I'm upset because I have been seriously ill this last six months, necessitating in me being hooked up to a machine to be fed, yet I have dragged myself to work with the machine rather than letting them down.

One other thing, no mention has been made of any outstanding holiday pay - despite me being off sick, do they still have to pay me this?

I look forward to hearing from you and thank you in anticipation.

Debbie

SarEl

Oh dear, what a saga. You never needed to wait to start - you could have served your previous employer with counter notice, and all you would have lost would have been a bit of notice pay.

As for your current situation, this may be an unfair dismissal - but you would need to get legal advice on this. However, I think they may have cut the date just fine enough (and if they have, I am sure it was deliberate) because the one year period to claim unfair dismissal is 52 weeks - 51 weeks employment plus one week for statutory (not contractual) notice. Probationary period have no relevance in law - so that doesn't matter one iota one way or the other. All that matters is whether you have the "magic" 52 weeks employment.

f you do it would then come down to the actual circumstances of the redundancy - whether the employer could show that a real redundancy situation had arisen. There isn't enough detail about that here, and it would need a solcitor to look at it anyway. The fact that the temp is still in the office doesn't necessarily prove anything in itself.

And some advice for the future - join a union. Not everyone can know the ins and outs of the law - but it helps to make sure that you have a "friend" on board who does.

Uncertain

Pinkdebster wrote: »

One other thing, no mention has been made of any outstanding holiday pay - despite me being off sick, do they still have to pay me this?



Debbie

Yes, holiday continues to accrue (at least at the statutory rate of 28 days per year) even when you are off sick. Any contract term that says otherwise will be unlawful.

Regarding the freelance work you may be able to argue that this was actually employment but this would depend very much on the circumstances. To make matters more complicated you can have a situation where HMRC will say that you are employed (for tax purposes) but an employment tribunal will take a different view for legal purposes.

You do need specialist advice.

SarEl

I knew there was something bothering me about this. You received the letter on Wednesday? Have you still got the pstage stanped envelope, can you prove when you received it? This is very important. And you must take advice from an employment solcitor. And make sure that you tell them what I am now going to say.

According to your "timeline", if the employer is giving three weeks notice to 13th August then they dismissed you on 23rd July - they must have done. But they may have made a mistake and left it too late. This is the important bit - notice isn't served until it is received. This is why the question about when it was received is very important - can you prove the date of receipt? Because if you can prove this, one weeks statutory notice expires on 4th August. One day after you completed 52 weeks and can therefore claim unfair dismissal.

Pinkdebster

Hiya

Thank you for responding so quickly!!

I am unable to prove when I received the letter (although I did confirm to my boss in the regional office that I had received it on Wednesday). However, the letter is dated 26 July 2010. Does this help at all?

I work(ed) for a Playground Company, designing and installing childrens' playgrounds - we were really, really busy until mid June when the Goverment withdrew Playbuilder funding.............

The letter states that due to this withdrawal, they need to cut overheads which means making me redundant with immediate effect. It says:

As per our terms and conditions of employment, you are entitled to 3 weeks notice. As you are currently on sick leave, we will pay you in lieu of notice and your redundancy will be effective from 13th August 2010. You are not eligible for any redundancy pay.

To be honest, it isn't really the "redundancy" that bothers me - it's the way it's been done whilst I'm off sick etc. My own boss down here obviously knew and was letting me talk to him about returning to work when I had recovered from surgery, knowing the letter was on the way. And, as I said, I have given them over and above this year during my illness.

Your advice is much appreciated!

Kind regards,
Debbie

SarEl

It helps a bit because if it dated then, the earliest it could have been sent is that day, and the earliest it could have been received would be the next day. Do you have the envelope - was it first or second class. While it is still fresh in your mind, write down exactly when you spoke to the manager and what was said - your telephone bill will (or should) show the date that spoke to him. Any evidence helps!

To be fair to the employer, they cannot "wait on" your return if there is a redundancy situation, and that isn't what they did wrong. But you were entitled to consultation (at least one conversation!) and that applies in any redundancy whether you qualify for payments or not. Simply serving notice by letter with no discussion, whilst off sick, smacks of unfair dismissal - even if there was a genuine reason for a redundancy. If you do have the 52 weeks - and it is a close call either way - then I think you should proceed with a claim for unfair dismissal. To be honest - the biggest argument will be over jurisdiction (whether you have the 52 weeks to make a claim. Aside from that the case would be a doddle to win. Frankly, for what it would cost them in legal fees, and the fact that after a year in work, you wouldn't get loads of dosh, they'd be sensible to settle.

You may have legal insurance on one of your household or car policies - some include it now. Or you could try a no-win no-fee if you can't otherwise afford it. A consultation won't cost you. But unless you are going to a specialist employment solicitor (and perhaps even if you are going to one!) you need to explain it to them as I have explained it here. Just because they are lawyers does not mean they will know this. Nobody can remember everything, no matter how good they are. And to be honest, whilst no win no fee and insurance lawyers may be very good, the quality of what you get is the luck of the draw. Lawyers are like anything else - you get what you pay for. What you have just had would have cost £200 if you asked me with my work hat on

Pinkdebster

Thank you so much for your help!! This is definitely something I will now look into.

To be fair, I have an email from the Company dated 1 June 2009 "welcoming me to **" so obviously, at that point, they deemed I had joined the Company.

I actually emailed my boss on Wednesday to tell him I had received the letter and he acknowledged this so I have this in writing! I don't have the envelope unfortunately as the recyling van came yesterday!!

I am also concerned as no mention has been made of any holiday pay and yet they owe me all the holiday accrued to when I leave as, ironically, we were so busy during the first half of the year that I couldn't get any time off!!

One other thing - can my partner go to my office and collect my belongings? As I mentioned before, I've just had major stomach surgery so am bed-bound for the next month - which covers this period of notice?

Seriously, thank you very, very much for your help - this is the first time I've ever used this forum - how impressed am I??

Kind regards,
Debbie

SarEl

Pinkdebster wrote: »

Thank you so much for your help!! This is definitely something I will now look into.

To be fair, I have an email from the Company dated 1 June 2009 "welcoming me to **" so obviously, at that point, they deemed I had joined the Company.

I actually emailed my boss on Wednesday to tell him I had received the letter and he acknowledged this so I have this in writing! I don't have the envelope unfortunately as the recyling van came yesterday!!

I am also concerned as no mention has been made of any holiday pay and yet they owe me all the holiday accrued to when I leave as, ironically, we were so busy during the first half of the year that I couldn't get any time off!!

One other thing - can my partner go to my office and collect my belongings? As I mentioned before, I've just had major stomach surgery so am bed-bound for the next month - which covers this period of notice?

Seriously, thank you very, very much for your help - this is the first time I've ever used this forum - how impressed am I??

Kind regards,
Debbie

Good. It may be that you don't win on the jurisdiction (that's the argument about whether you have the 52 weeks employment to make a claim) but you have nothing to loose. I'd certainly think a case was worth pushing. Unfortunately the letter welcoming you may not help, it's what is on your contract of employment as continuous employment. But bring it all up as it muddies the water (in your favour!)

Your employer should pay you accrued holiday, and probably will, but my advice would be to not remind them. Then if they don't pay it you can add this to the claim. It all helps to cast them in a poor light.

Your partner should phone and ask for permission to collect your belongings. Make sure that he or she says nothing and makes no comments. Especially male partners tend to have a tendency to whale in and defend their "mate" Make sure any "evolutionary throwback behaviour" is left at home! You want to give them no warning that you are seeking legal advice.

If you need any advice on this you can PM me. Good luck.

Oh, and make sure that you are in a union in future, won't you?