Redundency and age discrimination questions

jaynemaria

My brother in law is 70 and has worked in a care home for the last 16 years working full time.
Yesterday he was called into the office by the owner and told that he was being given a months notice as they could not afford to keep him on as the care home is up for sale and the wage bills are too high on paper for prospective buyers. He asked if he would be entitled to redundency and told that no as he was past retirement age he wasnt entitled to any. They are cutting this job down to three days a week, so my BIL asked if they would offer him the part time work and and again he was told no because of your age. I know this breaches age discrmination and drafted a letter on his behalf stating this.

Today the manager has had numerous phone calls from the owner regarding my BIL, the first telling the manager to tel my BIL to forget the conversation yesterday as he has now found out he cant just get rid of him he would have to be made redundent. The owner has set up another meeting with my BIL to discusss the issues, wehn told that I would be going as a representative to the meeting, and he said that was fine. He then rang back and said he wanted the meeting to be between just the two of them with no one else present.

My questions are :

does he have the right to have someone with him at any meetings.

If he is offered the reduced hours does he have to take this, and if he refuses will this affect his right to redundency.

If he stays on and the company is sold and then they make him redundent does he lose his rights as he will be employed by a different pperson


He is fit and well able to do his job, so there is no way they can say he isnt up to the work.

All help greatly appreciated

TIA

getmore4less

One mistake is they need to give him 12 weeks statutory notice.

I am not up on the current situation but I think they have to be able to justify retirement and as I understand it there are guidelines that 6 month notice is needed, not sure if this is a legal requirement.

Someone will be ble to help with that part.

He should initialy refuse any changes since this can impact payments if they do decide to make him redundant. keep the pay over £400pw if possible.

Staturtory redundancy 24 weeks capped at £400 so £9600 or less if paid less.


A buyout should protect service, either as a direct result of buying the business or as a TUPE if this is part of a bigger business.

McJay

In answer to the specific questions you raise;
1/ yes he is entitled to be accompanied at any meeting which may lead to the termination of his contract, best to join a union for this. The employer will argue this is not the case , your arguement is that the meeting is the start of a process which could lead the the contract being terminated.
2/ This is more difficult as the emploer may claim this is an alternative to redundancy, will depend on the ammount of hours asked to reduce.
3/ If the company is sold, he would transfer to the new owners with all his contarctual rights and his previous service would count should he be made redundant by the new employer. The transfer from employers is covered by TUPE (Transfer of Undertakings Protection of Employment Regs).
This does not apply if there is a shares take over by an other company.
Redundancy in is calculated on he basis of a week and a half for every COMPLETE year of service part years dont count. At the age qouted if he has 16 complete years service he would be entilted to 24 weeks, the statutory maximum is 30 weeks capped at around £400 pw. Check if the employer has an enhanced redundancy scheme.
If the employer in question here is the one in the news headlines I suggest BIL joind a union quickly.
He certailnly needs to take advice on age discrimination and from what you have posted the empoyer is clearly not following the statutory procedure which in itself could give rise to a claim for discrimination.
Hope this helps

jaynemaria

Thank you so much for the advice, he currently works 40 hours a week and if they offer him the reduced hour job it would be cut to 21 hours a week,obviously a big cut in a pay

jaynemaria

Well just a bit of an udate, he had another meeting today with the owner, and this time the manager went in with him. The owner denied that he had told my bil he was being given a months notice ( the manager backed bil up that he did as she was told he had by the owner too).

My bil was given a letter on March 31st stating that if he wanted to carry on working after April 2012 he needed to write a letter to the manager stating this no earlier than October 2011, which my bil was planning on doing, however the manager said in the meeting today that my bil is having his hours cut from 40 hours to 24 hours BUT he has got to train someone 'younger' to do his job and that he will automatically be retired in January 2012 when he reaches 71, and that he has no choice in the matter and that even if he writes the letter saying he wants to continue working, they will retire him regardless.

Any more advice would be greatly appreciated

SarEl

This one is not easy, and I am not going to type up why it isn't - here's a link to one of the best (and it still isn't easy) reads on the subject http://www.emplaw.co.uk/lawguide?startpage=data/200606271.htm No point me doing a job that has already been well done!

What this means in a nutsheel is that they can probably force him to retire. What they will have more problems with is trying to force a serious cut in hours before that time, but it may be moot since, if they can forcibly retire him then redundancy does not enter into it. The crux is whether they can force retirment and you really would have to take legal advice on the specific grounds they cite in refusing to agree to him continuing to work. Given his age and the nature of the employer alone, I can imagine several arguments that the employer could use that may be persuasive in law - but speculation isn't helpful and we need to know why the employer is taking this stance.

jaynemaria

Thanks so much for the advice and that article explained it really well,they have given him the letter regards retirement, although it does say that "if you wish to continue working past this date you must give us notice no more that six moths but at least three months before the intended retirement date", but it looks as though they will refuse whatever.
I have his contract in front of me here and no where does it state that they can reduce his hours, infact the only mention of hours is where it stated that he will be required to work overtime as and when needed, so I guess I can argue the cut in hours as in acceptable and use the custom and practice rule, stating that if they cut his hours he should still be paid his contractual hours.

I think the main issue is that he is expected to work less hours and train someone who he knows will take his job.

I know that this all may seem silly to some people who think he just accept retirement, but he is fit,active and more than capable of doing his job, my sister has MS so cant work and they do need the income.

SarEl

No it doesn't seem silly at all. Some people don't want to retire - some can't afford to.

I am a bit unclear though - I may have missed something in your posts - why do you need to argue custom and practice in regard to the cut in hours? Are you saying that the contractual hours are lwoer than what he works and the employer is saying they will only offer the contractual hours - is this a change of actual contractual details?

jaynemaria

Sorry its me being unclear, ACAS did say to me (well If I understood right!) that if in his contract it states you will be paid for x amount of hours, by cutting his hours he is still entitled to receive the contactual pay regardless of working less hours and the called it custom and practice.

SarEl

Hmm - I hate ACAS. Usually because they get it wrong. As they have here. There is nothing to stop an employer changing contractual hours - they must just do it right! They must discuss it with the employee, which they have done. If he is refusing to agree to this he must write to them and insist that his contract is honoured and state that he does not accept any change to the hours. If he doesn't say that he formally objects, they will take it as agreement. And it is still possible to enforce such a change - but refusing it is the first step for him, because you need to know what they will do if he refuses.

jaynemaria

Thanks, I am in the process of writing the letter now and will put that in,