TUPE - retracted redundancy

dwheawill

Am hoping at a long shot someone here may have had some experience of my current situation and be able to offer some good sound advice.

It was announced at work 2-3 months or so ago that all the warehousing and distribution side of the business I work at was being transferred under TUPE Regulations to another company. The owner of the company gave us a big speech about how it had come to either folding the business or doing the transfer as he wasn't prepared to sink any more money into the company. We were all told we would have a job over at the new company. Some time goes by and it soon becomes obvious that we are not all going to have jobs and due to the long distance to the new place of work we were given the option to take redundancy.


For myself the choice of job at new site or redundancy never came as I was told there was no job for me. After a 30 day consultancy I was given my official 10 weeks notice I was due. Wind the clock forward to last week, I am some 3 weeks into my notice and there is a meeting called in which they announce the collapse of the transfer and retraction of all redundancies, however I have already secured a new job and have a letter of offer from them, its 4k more than the poor coin I earn now.

My current employer is now saying I am due no redundancy as they are giving me my job back and I have to give my notice and I feel are trying to con me into giving my notice in writing to them so that it cancels out the notice they have already served me with, cos they are saying they will see if they can let me go early, which I know they wont from experience.

My understanding was that for them to retract my redundancy I must mutually agree to it, I have half spent my money I was due already in my mind and would very much like it at least as compo for what they have put me through for the last few months.

I feel we have been lied to about stuff because the boss reckons he is going to invest all the unspent redundancy money back into the company, yet we were told it was fold or transfer before.

I have spoken to ACAS once along with another similarly effected employee and we have both had conflicting advice, I need to speak to someone who is wise on employment law but dont have the cash for expensive solicitors. The redundancy payment was to be 3.2K for 10.5 years service, poor I know but I want it!

getmore4less

As soon as you got confirmation of the new job you needed to issue counter notice while still under notice of reduntancy to try to ensure your redundancy and stop any retraction.

There may be one issue that needs clarification from the legal eagles.

I did not think that the redundancy notice could be given till after the TUPE transfer and only if there were relevent reason.

The current employer should not be doing redundancies it should be the new employer.

I think that by doing consultation and issuing notice before the transfer means they are obviously directly connected to the transfer which AIUI is not legal.

Jarndyce

getmore4less wrote: »

As soon as you got confirmation of the new job you needed to issue counter notice while still under notice of reduntancy to try to ensure your redundancy and stop any retraction.

There may be one issue that needs clarification from the legal eagles.

I did not think that the redundancy notice could be given till after the TUPE transfer and only if there were relevent reason.

The current employer should not be doing redundancies it should be the new employer.

I think that by doing consultation and issuing notice before the transfer means they are obviously directly connected to the transfer which AIUI is not legal.

What are you talking about? There is to be no transfer and there is to be no redundancy - the Op has been offered his old job back.

Counternotice only applies if you want to leave while you are under notice of redundancy - that doesn't apply in this case.

dwheawill

Jarndyce wrote: »

A redundancy can be 'retracted' at any time up until the day it is due to take effect - if the job is still there for you to do then you are not redundant, literally or legally.

If you have already spent money you do not have then you have nobody but yourself to blame. (Edit - sorry you only spent it 'in your mind').

From what you say your employer has done absolutely nothing wrong.

And your point about conflicting advice from ACAS only goes to reinforce my views about them and my advice to anyone who posts on here only to say 'contact ACAS' to please not bother in future.

Hi Jarndyce, no I had only spent the money in my mind fortunately, I maybe daft but am not that daft

Just to clarify things a bit better. My company proposed to transfer the warehousing operations and work in partnership with the new company under a 2 year contract. All jobs were to be tupe'd over to the new company. Due to the distance to the new site we were offered to take redundancy from our current employer before the transfer date.
A 30 day period of two separate consultations for all affected employees then started, one for TUPE and another for redundancy. All employees were put through both processes regardless whether they wished to transfer or be made redundant. After the 30 days it was determined who was to transfer and who was to take redundancy. I initially chose to transfer but after several consultations a job for me changed to being no job and I was then served my 10 weeks notice due. I am now 4 weeks into my notice and have been offered a new job, they are expecting me to start when I was expected to finish serving my notice in my current job. I at the time saw no need to tell them about my new job as I was already under notice, now last week they announced the collapse of the transfer(which for what its worth had progressed to the point of the transferring employees having received by post new job welcome packs and contractual info)due to what they say was the fault of the other company. The next week I got a letter saying things were back to normal and in a nutshell as if the redundancies never happened.
No-one has consulted with us since, they have just assumed that no-one has found other work I think.

As I stand now I can't start the other job if the notice they gave me does not stand anymore due to the 10 weeks notice I have to give.

This has been a really stressful time for me as is and isn't looking much better with what am being advised here. I read on the governments site that the redundancy notice must be mutually withdrawn? Can anyone clarify what that means in this case?

Jarndyce

OK, I have looked into this a little more and you may actually have a window of opportunity here.

Technically, an employuer cannot unilaterally withdraw a notice of redundancy once it is in place. But they can offer you suitable alternative employment during that period. Given that they are now effectively offering you a suitable alternative role which is your old job back, you can hardly argue it is unsuitable!

Therefore, normally, if you refuse the 'suitable alternative role', eg by resigning, then you will not receive the redundancy payment.

However, there is case law which suggests that refusing an offer of your old job back in the circumstances you are in, ie having secured alternative employment, would be considered reasonable and therefore would not exclude you from receiving a payment.

So what you would need to do is:
a) either work your notice, or if you want to leave earlier give counternotice that you want to leave on an alternative date prior to your given redundancy date.
b) when they refuse you a redundancy payment, take out an Employment Tribunal claim to claim the payment.

LeanneGH

I agree this is suitable alternative employment ie your old job which effectively cancels the redundancy.
I would be very surprised if you have sufficient grounds for getting a redundancy payment given the entire redundancy exercise has fallen through, not just your own role having been 'saved' but I guess you can try making an ET claim and see where it takes you. I would however advise you in the meantime to mentally give up that redundancy money so you don't continue to feel cheated of it - that will only lead to feelings of resentment and bitterness.

As for the leaving date you have the option to 'burn your bridges' and simply not work out your full notice. This is not to be done lightly as it will clearly mean they would never take you back and it could affect future references. But if you feel confident the new job is secure and doing so won't affect it then you could simply tell your current employer the date you intend to leave (being reasonable about that). It's virtually unheard of for an employer to sue for breach of contract.

Jarndyce

LeanneGH wrote: »

I agree this is suitable alternative employment ie your old job which effectively cancels the redundancy.
I would be very surprised if you have sufficient grounds for getting a redundancy payment given the entire redundancy exercise has fallen through, not just your own role having been 'saved' but I guess you can try making an ET claim and see where it takes you. I would however advise you in the meantime to mentally give up that redundancy money so you don't continue to feel cheated of it - that will only lead to feelings of resentment and bitterness.

As for the leaving date you have the option to 'burn your bridges' and simply not work out your full notice. This is not to be done lightly as it will clearly mean they would never take you back and it could affect future references. But if you feel confident the new job is secure and doing so won't affect it then you could simply tell your current employer the date you intend to leave (being reasonable about that). It's virtually unheard of for an employer to sue for breach of contract.

:D:D:D Not been around here very long have you!

Anyway he doesn't have to burn his bridges, he has a statutory right to give counter notice.

getmore4less

Jarndyce wrote: »

:D:D:D Not been around here very long have you!

Anyway he doesn't have to burn his bridges, he has a statutory right to give counter notice.

I think that is the key factor an ET will look at who acted first.

(links for the case law you are using)

One reason why counter notice is important(as I said earlier) while still under notice.


AIUI counter notice can still have the same termination date as the original notice.


Still not convinced the redundancy by the current employer was legal with a pending TUPE.