Can an Employer Change a PILON Redundancy Agreement?

Woodie_Woodpeck

Hello,

I was offered the below 3 options via a formally written email in relation to my 3 month notice period upon finding my role was being made redundant. I chose option 3 and my employer replied via email that they would make the necessary arrangements. However, between this email exchange and the date I was due to receive option 3 my previous employer lost their main investor so my employer chose option 2. Are they legally entitled to change the redundancy option? Is the exchange of formally written emails legally binding? Would I be able to get my owed money via an employment tribunal? I went through the ACAS process after finding that I did not receive option 3 and before I found out that they had chosen option 2. ACAS informed me that I should wait for the company to find the money because the company could go into insolvency and I would receive no money. I've since discovered that the company have been attending international conferences abroad and hiring for different role types.

1) Receive a salary on gardening leave for my 3 month notice period together with accrued holidays but remain an employee of the business.

2) Receive a salary on gardening leave for my 3 month notice period together with accrued holidays but remain an employee of the business until I found a new job with another company.

3) Receive Payment in Lieu of Notice (PILON) equivalent to the tax-free amount I would receive via a salary for my 3 notice period together with accrued holidays via an ex-gratia payment. Under this scheme I would no longer be an employee of the business, be able to use my time as I wished, and free to take up any opportunities without chance of this payment being pulled back.

Many Thanks

getmore4less

Have you been put on notice properly with a letter saying your contract will be terminated at X date dues to redundancy?

They can change their mind right up to the final termination date and the law is on their side as it favours any attempt to keep people employed.

They can now, while on garden leave, still withdraw the redundancy completely.

Might be an idea to get another job and invoke the clause that allows you to terminate early to get the redundancy paid if you think they are going bust.

there is also counter notice which could have been used with option 1. but that can only be done within the statutory notice period.

Woodie_Woodpeck

Hi getmore4less,

They did not send me a letter on paper in the post. Our communication was purely via email. I'll paste our full communication confirming the redundancy option below this message.

Many Thanks

On 26 Sep 2017 12:41, <Manager@XXXXX.XXX> wrote:

Thanks Employee.

I’ll make the necessary arrangements.

All the best,

Manager

---

From: Employee
Sent: 26 September 2017 11:06
To: Manager
Subject: Re: XXXXXXXX

Dear Manager,

Thanks for your time on Friday and for outlining the below options in writing. I would like to choose option three below.

My current address is now XXXXXXXXXXXXXXXXXXXXXX if needed.

Kind Regards,

Employee

---

On Monday, 25 September 2017, 09:29:54 BST, XXXXXXXXXXXXXXXXXXXXXXXXX wrote:

Dear Employee,

I write further to our discussion on Friday morning, the 22nd, when I outlined some of the changes at XXXXXXXX going forward.

Whilst it was a difficult decision I can confirm that your position is now redundant and you will in principal not be required to return to the office to work your notice.

We believe you now have three options with regard to your three month notice period and we will support whichever you choose.

Option 1

You remain an employee of the company but complete your notice period on gardening leave without requirement to attend the office unless asked.

As you would still be an employee of the business I should clarify you would be expected to carry out any reasonable duties asked with 24 hrs notice, which may include time in XXXXXXXX.

Financially on this scheme you would receive your usual salary for Sept, October and November, but on the December salary run you would receive a partial payment taking you to the 22nd which completes your notice. On this final salary run you would also receive payment for any accrued holidays.

Option 2

Similar to the above but we allow you to seek alternative employment and attend interviews during your gardening leave.

Should you be successful in this process then we would allow you to terminate your employment early, without notice.

Whenever this occurred XXXXXXXX would pay your salary and accrued holiday pay to the termination date and thereafter you would be in the employ of the new organisation.

Option 3

Under this option we mutually agree to terminate your employment on 22nd September.
In the forthcoming salary run at month end you will receive your salary, net of the usual deductions, up to the 22nd, any accrued holiday pay and also, in lieu of asking you to work your notice, a further ex gratia payment equating to three months net salary.

I understand your first months with us were subject to a special tax code which reduced your net pay, but going forward this net salary would be circa £3300/month.

In the September payment therefore under this option you would receive the net pay to the 22nd, any accrued holiday pay, and an ex gratia payment of £9900.

For sake of clarity under this scheme you would no longer be an employee of the business, be able to use your time as you wished, and free to take up any opportunities without chance of this payment being pulled back.

Please come back if you require any clarity on the above. In the absence of such please confirm which option you would like to follow.

Once again, I apologise for this situation and wish you the very best for the future.

Best Wishes,

Manager

getmore4less

We believe you now have three options with regard to your three month notice period and we will support whichever you choose.
............
manager

looks to me this is what the manager thought and would support those options, turns out they failed to support the one you wanted and you are on garden leave.

I am right in assuming you have been there less than 2 years, it is reading that way as there is no mention of redundancy payments?


IN the absence of a proper formal letter of termination of employment it is not clear if the notice has started yet, the email could be considered part of consultation so not yet on notice, also it is back dating the termination as it is clear from the email on the 25th that the decision to notify you was not made at the meeting on the 22sept.

Woodie_Woodpeck

Hello getmore4less,

Thank you for your reply. It is nice to discuss this with somebody with no bias. I worked for for just over 100 days at the employer where my role was redundant. I found and started a new role within 3 weeks. I will discuss all of the above with some solicitors this week during a free drop in session but imagine that my investigation and research is reaching the end of the road. I'll certainly be keen to get everything in signed writing on paper in the future.

Many Thanks

getmore4less

Did you raise the issue when the PILON did not happen at the end of Sept?

Woodie_Woodpeck

Yes. I called and emailed them daily multiple times in the first week of October until they confirmed that they did not have the money due to an investor pulling out of the company between the email exchange above and the salary run at the end of September. They therefore asked me to wait until they have the funding. I called them a week later and then have emailed them on a weekly basis since then and have gone through the ACAS process but ACAS just confirmed that my employer was aware they they owed me money and would pay it as soon as possible.

getmore4less

You seem to be saying they are still offering option 3 with delayed payment.

That is not what you said in your first post, there you said they chose option 2.

Woodie_Woodpeck

Hi, they were still offering option 3 until they found out I secured another role and then I found they chose option 2 by receiving my P45 in the post with a different employment end date.

getmore4less

how do you know that have you asked where the PILON payment is or when it will be paid?

Woodie_Woodpeck

Hi there,

Sorry, I am not that I understand your question but I have a full email thread asking where the PILON payment is and when it will be paid. Does that help?

Thanks