Redundancy Continuous Length of Service

plh56

Hi,
Looking for some advice please. My partner has just been given notice of redundancy as they are reducing roles down from 8 to 2 and she was not successful in being one of the 2 remaining. She has worked for the employer for 10 years, 7 years as a teacher and then last 3 years as a development manager so she was expecting 10 weeks redundancy pay. However, the letter states she only has 3 years continuous service. She has queried this with HR and they say this was because she had a 1 week break when she changed roles. However, the changeover was during a half term so she was not ever made aware of this, and thought she was still employed in her old role during the half term week up until the day before she started the new role. She has found her old payslips and it looks like that week was never paid when you work out the amount but she had never noticed they hadn't paid that week as she trusted them when she was told she would retain her continuous service.
Her new role's contract does state a start date of the day she started the new role but she never thought anything of it as she thought that was just referring to the start date of the new role, not start date with the company.
Is there anything she can do to get this corrected, as ignoring the missing week's pay it means she loses 7 weeks worth of redundancy pay which she really needs right now while looking for new jobs. Unfortunately she no longer has any contacts with the old school as all staff have moved on. She's spoken to her union but their only advice was to tell HR she was paid for that week, but as HR have the payslips for both roles that advice is worthless as HR know that's not true. What should her next step be, or is she just out of luck as it's too late to get corrected now and have to accept losing the 10 years worth of redundancy due to the clerical error she wasn't aware of? Many thanks!

cr1mson

http://www.xperthr.co.uk/faq/what-types-of-break-between-contracts-would-not-constitute-a-break-in-continuous-employment/19646/

getmore4less

If there was a discontinuous employment they should have issued a P45 at the termination of the employment.

What was on the P60?

do they have a letter of resignation for the job as a teacher..

Not getting paid is not an indicator of termination of the previous contract.

it is not just the redundancy, the notice period would be at least 10 weeks as well.

plh56

Thanks a lot that link and that information are both very helpful. We're currently searching for the P60/P45 so will report back once found (fortunately she keeps all documents so will have it somewhere if it was ever given).

Thanks again

plh56

We have found the P45 and P60. It turns out she resigned in January/February (after she was offered the new role starting on Monday 24th February 2014). However, her contract stated that as a teacher she had to give a full term's notice, so usually she would have had to work until end of April but they agreed to let her leave early to be able to start the new role on 24/02. However, the P45 shows they actually ended her old role on Friday 14th February 2014 (the last day of the half term) rather than the 21st which was expected date but this was never explained to her at the time and she didn't notice it on the P45 unfortunately. The reason she didn't notice the loss of the week's earnings on her final payslip and P60 also was because they had overpaid her due to some other error in previous months, so had taken some pay off the final payslip to correct that so she thought that was the reason for less pay.

So where does this all leave her legally? She was terminated on 14/02 instead of the agreed date before her normal notice period was served, so technically had 1 week break where she wasn't employed by them on the half term but wasn't aware of it as it was not what was agreed verbally and was not told (except indirectly on the P45) and it was normal for her not to work half terms as a teacher.
Does she have any legal avenue to claim she should be treated as continuous service if she was to approach ACAS perhaps, or is there nothing to be done now we've discovered this?

getmore4less

Looks like she may have got stitched up they have no obligation to tell you the law.

The next step is to check the T&C of the organization(s) as some have rules which are better than the statutory week I have seem a month for some government places.

a quick google
finds

https://www.teachers.org.uk/sites/default/files2014/burgundy-book.pdf


that refers to
A teacher’s entitlement to a redundancy payment depends upon them having two
years continuous service with organisations included in the Redundancy
Payments (Continuity of Employment in Local Government, etc) (Modification)
Order (see Annex C for a list of these organisations).

covers some continuity

this appears to be the actual legislation...
http://www.legislation.gov.uk/uksi/1999/2277/contents/made


the area of the employment act that applies is

http://www.legislation.gov.uk/ukpga/1996/18/part/XIV/chapter/I

plh56

She works for a council in England so is covered by that legislation, but after reading it, to my (admittedly legally amateur eyes) it seems not to help her as it also states 1 week except in circumstances not relevant to her case.

Can she argue that as she was contracted until the end of term (in April), she should have been covered by the old contract either until then, or at least until the new contract started (and presumably superceded it as same company) on the 24th Feb?

What does the law state about letting an employee out of the notice period early? They obviously agreed to do it in this case, but got the date wrong and did it earlier than they should have. In such situations shouldn't something have to be signed by both employee and employer to terminate the contract earlier than April specifically showing the date of early termination, to avoid situations like this? Can we ask them to produce evidence that she agreed to terminate the contract early on 14th, and then when they won't be able to produce any (as she never agreed that), use that to argue she should have still been employed during that week?

Really appreciate your help so far and your expertise by the way - thanks again!

Undervalued

plh56 wrote: »

She works for a council in England so is covered by that legislation, but after reading it, to my (admittedly legally amateur eyes) it seems not to help her as it also states 1 week except in circumstances not relevant to her case.

Can she argue that as she was contracted until the end of term (in April), she should have been covered by the old contract either until then, or at least until the new contract started (and presumably superceded it as same company) on the 24th Feb?

What does the law state about letting an employee out of the notice period early? They obviously agreed to do it in this case, but got the date wrong and did it earlier than they should have. In such situations shouldn't something have to be signed by both employee and employer to terminate the contract earlier than April specifically showing the date of early termination, to avoid situations like this? Can we ask them to produce evidence that she agreed to terminate the contract early on 14th, and then when they won't be able to produce any (as she never agreed that), use that to argue she should have still been employed during that week?

Really appreciate your help so far and your expertise by the way - thanks again!

If an employee fails to work their contracted notice, without the employer's agreement, then the employer would have a claim against them for any unavoidable losses this causes. That might include the additional cost of short term temporary staff but could, in certain circumstances, be far more. However such claims are fairly rare. Many employers take the more pragmatic view that forcing somebody to work, who really doesn't want to be there, is of little value.

plh56

Thanks Undervalued, that's very useful information, it seems the law has the employer covered well then. But I was more interested in the other way around, where the employer has ended the notice period earlier than contracted or verbally agreed, but fails to inform the employee. What rights does the employee have to get that corrected if they only learn of it years later as HR didn't tell them? It seems to be a ridiculous situation where the employer can (deliberately or by mistake) end a contract a week earlier than expected, leaving an employee unemployed for a short time without being aware of it. Surely both parties should have to sign a legal document so it's on record that both parties agreed the early date to avoid abuse by employers trying to save money and end contracts early?

lincroft1710

But the reduced amount of salary for Feb 2014 and the P45 both showed that you wife's employment as a teacher ended on 14 Feb 2014. Unfortunately your wife failed to notice either of these at the time.

Her employer allowed her to end her contract early and it would seem logical to end the contract on the last day of actually working as a teacher, rather than ending it on the last day of the half term holiday. So it may not have been a clerical error. But I would have thought her employer would have confirmed her final day as a teacher, in writing.

It is far, far too late to bring this before an Employment Tribunal and if it was possible and she lost, she would be worse off financially than if she just took the 3 weeks redundancy.

I cannot see an easy resolution in your wife's favour.

plh56

Thanks lincroft1710, yes she should have noticed it in the P45, so that is her error. It seems a very costly one. The reduced amount in the final pay she didn't notice as they had told her they had been overpaying her in the months previous so they would be taking a deduction from her final pay to correct it, so she thought the shortfall was due to that error, not due to the early ending of the contract. Giving them the benefit of the doubt, that's just an unfortunate extra complication that caused it to go unnoticed. She is very trusting and believed them when they said they would ensure it continued her continuous service but she has learnt the hard way never to trust what's verbally told. As far as ending it on the last day of half term, yes it does seem logical but I've been told from another ex-teacher (who now works in HR at my work by coincidence) that it is standard practice to include half-terms as paid time for teachers and that's what happened in her case and what my wife was told would happen so it might be logical but doesn't seem consistent, but as you say far too late to contest now as it went unnoticed for so long. As for the letter, they have today said they sent one but no such letter was ever received, we've requested a copy (for all the good it does now), I suppose if we give them the benefit of the doubt on that one too, perhaps it got lost in the post which is just another unfortunate coincidence to her detriment. I still think its disgusting that the law allows the employer to terminate the contract early with no legal formal notification in writing of the date so employee only knows via the P45 but if that's the law then we will just have to accept that they will use the letter of the law to their favour rather than doing the morally correct thing and paying her the full 10 years redundancy after she gave them 10 years (except 1 week) of loyal service.

They now want her back on a part-time basis, but due to this experience she would rather be unemployed than work for them ever again as she doesn't trust them, so they will have to find someone else.

Thanks for your valuable advice though, we have learnt a lot from it.