Length of Service

Sambella

A few months ago our office had to reduce staff this was the second round of cuts) On offer was enhanced redundancy, early exit or redeployment.

I put my name down for redundancy mainly too see what the package would be as more cuts are expected ( the function is moving to another organisation). We've been told we will move under TUPE followed by only the function will go and now we may move. Target date for the move is April 2018. By then I would be entitled to early exit with inresuced pension if I chose to do so.

I was given a figure for redundancy that was below what I expected because of my work pattern which is explained below.

I started work here via an organisation that helps disabled people. This organisation paid a percentage of my wages and my workplace paid the rest. I was bound by rules and regulations of workplace but my employer was this organisation. This began in 1995. In 2002 I applied for an got a permanent position here and in 2005. I received a new contract stating that my length of service was continuous. Annual leave and pay i reflects the entire 21 years.

My redundancy package was however based on 14 years. Despite HR confirming that my service was indeed continuous.

Whilst this may have been an error on their part and if I had pursued it I may have been able to get it amended. However as I decided to stay here I did not pursue it.

In preparation for the next round of cuts or for when the function transfers I would like to know if I have a good case ,in your opinion, to have the 6 years with the organisation added for calculating redundancy.

Enhanced redundancy here is a multiple of statutory redundancy pay.

I was not allowed to join the workplace pension scheme whilst I was with this organisation.

I must point out that it was not I who sought work via this organisation. I did work experience here whilst doing my NVQ and when it was time to leave they offered me work via this organisation. I had to do aptitude and IQ tests before they took me on despite having the necessary qualifications already. I feel I was in this position because of them. As soon as I could I applied and got a permanent position.

Undervalued

Technically there is no such thing as voluntary redundancy. The moment it is not compulsory then it becomes a mutually agreed separation.

The terms are therefore whatever you and the employer mutually agree and you have no "rights" as such to anything apart from not being made redundant unless it is unavoidable!

The fallback, if you refuse and they have valid legal grounds to make you redundant, is that you only get the statutory minimum. If they don't have valid grounds but do it anyway you could claim unfair dismissal. If you agree "enhanced" terms then you will be signing away any right to claim unfair dismissal.

Length of service is completely irrelevant unless the redundancy is compulsory.

Sambella

I know all that and agree with you. It may well be that compulsory redundancy is what we end up with but even then if that is what happens I would like to know if I can have the total length of time I physically worked for them can be used to calculate statutory redundancy. 21 years not 14.

As of yet no one has been made compulsorily redundant here but as the offer is in place until 2019 they could well move to compulsory redundancies nearer the time if they don't get enough volunteers. There is a reorganisation going on which began in 2015 and ends in 2019.

Undervalued

Sambella wrote: »

I know all that and agree with you. It may well be that compulsory redundancy is what we end up with but even then if that is what happens I would like to know if I can have the total length of time I physically worked for them can be used to calculate statutory redundancy. 21 years not 14.

As of yet no one has been made compulsorily redundant here but as the offer is in place until 2019 they could well move to compulsory redundancies nearer the time if they don't get enough volunteers. There is a reorganisation going on which began in 2015 and ends in 2019.

As I read what you say then, if it were a compulsory redundancy, I would agree that it ought to be 21 years.

However you really need to get one to one professional advice on that from somebody who can see the contracts.

Have they offered any reason as to why they believe it is only 14 years? Ultimately if they made you genuinely redundant and only paid 14 years then you would have to sue them for the remainder and a judge would have to decide. Unless that happens it is only an opinion.

sangie595

Undervalued wrote: »

As I read what you say then, if it were a compulsory redundancy, I would agree that it ought to be 21 years.

However you really need to get one to one professional advice on that from somebody who can see the contracts.

Have they offered any reason as to why they believe it is only 14 years? Ultimately if they made you genuinely redundant and only paid 14 years then you would have to sue them for the remainder and a judge would have to decide. Unless that happens it is only an opinion.

I disagree. The early part of the work, the OP very clearly states the original job was through an organisation for disabled employees, and that organisation held their contract of employment. In effect, they operated as an agency. Such employment does not count towards continuous employment, and the correct calculation is 14 years. Remploy used to operate in this way - I don't think they do any longer, but I may be mistaken. Their role was as an agency, but they subsidised the wage - exactly what the OP has described.

Undervalued

sangie595 wrote: »

I disagree. The early part of the work, the OP very clearly states the original job was through an organisation for disabled employees, and that organisation held their contract of employment. In effect, they operated as an agency. Such employment does not count towards continuous employment, and the correct calculation is 14 years. Remploy used to operate in this way - I don't think they do any longer, but I may be mistaken. Their role was as an agency, but they subsidised the wage - exactly what the OP has described.

I would agree with you but for the fact the OP says

I received a new contract stating that my length of service was continuous. Annual leave and pay i reflects the entire 21 years.

My redundancy package was however based on 14 years. Despite HR confirming that my service was indeed continuous.

OK, the HR department may be wrong which is why I said the OP needs to seek professional advice from somebody who can see the contracts.

Sambella

No they didn't but the ready reckoner they supplied came up with a very similar figure to them as It appears the calculation goes from when I joined the pension scheme when I became permanent in 2002. They did not show me any calculations they had as it was informal and just verbally told me the figure. Prior to this HR had emailed me to confirm that my employment was continuous.

I'm hoping that it will just be as simple as pointing this out to them if and when it happens but I also want to be prepared in case they do not agree.

sangie595

Undervalued wrote: »

I would agree with you but for the fact the OP says



OK, the HR department may be wrong which is why I said the OP needs to seek professional advice from somebody who can see the contracts.

Mistakes can be made on contracts. But the facts as laid out by the OP would clearly be interpreted as employment by an agency for the early part if, as they say, that agency held the contract of employment. If the facts are as the OP says, then the law can only follow one course. Of course, the employer can choose to act differently, but the precedent that may create would have huge implications for their position.

Sambella

Many thanks for all your replies. I will look into this further.

It would have been helpful if HR had made it clearer at the time.

There were other workers here with this organisation and around 2 years after I got my permanent position my workplace in agreement with the organisation took all these workers on permanently. I do not know the details of this agreement but I don't think that applies to my case as I jumped the gun and sought a permanent position by myself.

Undervalued

sangie595 wrote: »

Mistakes can be made on contracts. But the facts as laid out by the OP would clearly be interpreted as employment by an agency for the early part if, as they say, that agency held the contract of employment. If the facts are as the OP says, then the law can only follow one course. Of course, the employer can choose to act differently, but the precedent that may create would have huge implications for their position.

Indeed but employment can also be contractually agreed to be continuous even when if might otherwise not have been.

As I say, the OP does need direct professional advice.

Sambella

Undervalued wrote: »

Indeed but employment can also be contractually agreed to be continuous even when if might otherwise not have been.

As I say, the OP does need direct professional advice.

I am still in possesssion of this paperwork from 2002 saying that my employment is continuous. You never know it may come in handy!!

If it is not to be in the end after seeking advice I will just accept things and move on