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Being "let go" less than 2 years service

22 replies

JoblessMum1 · 22/11/2017 18:36

Have NC'd for this.

I left a my long term job (10years+) just under 2 years ago for what seemed like a more attractive position. Turns out grass isn't greener.

Anyway I have been told today that my contract will be terminated on 30 November. I have a meeting with HR scheduled for next week so want to get my ducks in a row.

I know that they are not entitled to pay redundancy or work with the redundancy rules as I have been there under 2 years however not sure what terminology they will use as technically the job is redundant (restructure and my area is not going to be a service they offer any more).

I have 6 months notice which they have already confirmed they will pay in lieu and I will be off their books if you like come end Nov.

My questions which I hope someone can help with are:

  • what's better - to resign or be made redundant (albeit with no redundancy pay as such)? If they give me the choice that is!
  • our holiday year runs jan to dec. What happens to the 2018 entitlement? Do I get paid for 5 months worth of holidays?
  • what happens re pension contributions. It is a generous pension where they pay 12% and I pay 3%
    I think that if you have a pension less than 2 years the money is "lost". Is this right and if so can I ask to continue the pension myself so the money isn't lost or can I ask them to buy me out of what I will ultimately lose?
  • we have private medical insurance and obviously I will lose the benefit for my 6 months notice period if they pay me off in lieu. Can I ask for the contributions to buy me out or to be covered up to end May?
  • Anything else I should be asking for?

    I want to make sure that I get everything I am entitled to. It could take a while to find something new and so want as much financial protection as possible.

    Many thanks!
OP posts:
flowery · 22/11/2017 19:07

Does your employment contract state that they are entitled to terminate your employment with immediate effect and pay you in lieu of notice?

How far off two years will you actually be on 30 November?

JoblessMum1 · 22/11/2017 20:27

The contract just states we have to give each other 6 months notice. It doesn't mention payment in lieu.
I will be 3 months off 2 years at end Nov.

OP posts:
flowery · 22/11/2017 22:19

In that case if they terminate your contract earlier than 6 months’ notice they would be in breach of contract. That doesn’t mean they can’t do it, but it does mean they need to ensure your pay in lieu of notice compensates you for everything you would have received if they had given you the 6 months’ notice you are entitled to, ie-

Holiday entitlement for that 6 months
Healthcare for that 6 months
Redundancy pay as you would have reached two years service if they’d not acted in breach of contract
Salary obviously
Any other benefits you get

JoblessMum1 · 23/11/2017 08:06

Thanks flowery

OP posts:
JoblessMum1 · 27/11/2017 18:20

I'm back.

I've now had a meeting with HR and am totally confused by what they are proposing.

My contract is terminated 1 Dec but I am expected to tidy up my work over the next couple of weeks and once an exit date has been agreed (in the next 2 weeks) I will be paid my 6 months in lieu of notice.

There seems to be no real process being followed here but I think what they want to do is pay notice in lieu but not pay it for a couple of weeks whilst I still work.

does anyone know if they can do this?

OP posts:
BarchesterFlowers · 27/11/2017 18:23

Phone acas - it is free, confidential and a fantastic advice service.

Mxyzptlk · 27/11/2017 18:26

They can do whatever they like if you don't challenge it.
I'm no expert but it looks like they're trying to do you out of redundancy pay, at the very least, as your 6 months notice would take you over 2 years of employment.

NapQueen · 27/11/2017 18:30

Do they have a reason for letting you go? Have they been down any disciplinary routes etc?

Iprefercoffeetotea · 27/11/2017 18:54

I'm no expert but it looks like they're trying to do you out of redundancy pay, at the very least, as your 6 months notice would take you over 2 years of employment

The six months is a contractual notice period, and only the statutory notice period would apply here, which I think is a week per year of service, so might be 2 weeks but probably only one as it's probably completed years of service. So I don't think the OP can claim for redundancy (or unfair dismissal).

This happened to me in the days when you needed one year's service to qualify for unfair dismissal, I was let go in my 11th month, about 3 weeks off my anniversary. It was really awful. The only thing I can say about then is that I only had a one month notice period but they paid me for three. It's a rubbish thing to do OP, but six months' money is pretty decent and gives you time to find another job. I'd also see if you can keep your healthcare, they may have paid a year's subscription anyway so see when that ends, it isn't worth them cancelling. I don't know how AL works for PILON payments, you'll have to ask about that too.

I don't know about pension contributions, mine stayed in the scheme and was converted to a private scheme for me but it wasn't a final salary scheme, the rules might be different if yours is.

Are they offering you a settlement agreement with paid for legal advice? I'd also ask for outplacement support. Even though you don't have the service requirement, it's worth asking for all of these things.

NewtsSuitcase · 27/11/2017 18:57

For perhaps the first time ever I am disagreeing with flowery. You are absolutely not entitled to holiday pay for the six months nor are you entitled to redundancy pay I'm afraid. That is completely incorrect.

I'm an employment lawyer.

flowery · 27/11/2017 22:16

Sadly (or not) I don’t have an “I’m an employment lawyer” badge to display, but we’ll have to agree to disagree.

In circumstances where the OP’s contract does not permit her employer to terminate immediately and pay in lieu of notice, as she states, she is entitled to 6 months’ notice, ie to remain employed for 6 months after being told her employment is ending. If her employer pays her in lieu of notice and terminates her employment immediately they are in breach of contract. In order to avoid the OP bringing a case for breach of contract they need to put her in a position where she has not incurred financial loss as a result of their breach, ie to ensure she gets what she would have been entitled to had they given her the 6 months’ notice she is contractually entitled to.

If her employer adhered to the terms of their contact, the OP would be entitled to 6 months’ holiday pay, other benefits, and also redundancy pay. So to avoid a breach of contract claim, in my view, pay in lieu of notice needs to take these things into account.

NewtsSuitcase · 28/11/2017 07:31

Incorrect I'm afraid. There is a series of cases around loss of opportunity which clarifies the matter. It certainly used to be the case that it was possible to claim for loss of opportunity but that was around 15 years ago now. The argument used to go that if the employer had not terminated in breach of contract the employee would have had the opportunity to claim unfair dismissal, redundancy pay etc. As such, we used to have to take notice into account when calculating entitlements. But those are statutory claims and the rules are strict. The employee has to have two years service at the EDT (effective date of termination). The EDT is the date when the employment actually ends, not the date that it would have ended if correct notice had been served.

Re leave the entitlement is to paid time off, not to additional pay. The employee is getting the paid time off by virtue of the fact that they are being paid in lieu of notice. There is no entitlement to additional paid time off when you are no longer employed. The extension of your argument would allow an employee to assert an entitlement to 13 months' pay a year.

I did say I reluctantly disagree and so I'm not sure why the need for the snidey comment about the fact that Ive said I'm an employment lawyer. I've posted on the same threads as you flowery for many years now under various names and I always state that I'm an employment lawyer so that people know that I'm not just some random person saying what they think they know.

OP do take advice, clearly you have two professionals disagreeing here which must be confusing but I shall also post some links to demonstrate the position.

flowery · 28/11/2017 07:38

Happy to be corrected if I’m wrong, no problem with that. Continue putting your badge on if you like. Not to my taste that’s all.

I’m sure you are indeed an employment lawyer but saying so as some sort of sign-off doesn’t make it more true than not saying so.

NewtsSuitcase · 28/11/2017 07:44

www.xperthr.co.uk/faq/if-an-employee-receives-a-payment-in-lieu-of-notice-will-his-or-her-annual-leave-entitlement-accrue-up-to-the-termination-date-or-the-end-of-the-notice-period/88429/

"If an employee receives a payment in lieu of notice, he or she is generally entitled to receive payment for any benefits that would have accrued during the notice period. However, the method of calculating payment for statutory holiday that an employee has accrued but not taken at the time of dismissal, as set out in reg. 14 of the Working Time Regulations 1998 (SI 1998/1833), is specifically based on the actual termination date, not the date on which the employment would have terminated had statutory notice been given. This means that, even if the giving of proper notice would have given rise to an increased entitlement to statutory holiday, this need not be reflected in the payment of holiday accrued up to the termination date under reg.14.

Entitlement under reg.14 does not vary if the employer makes a payment in lieu of notice to cover the full notice period. It is the actual date of termination that matters, not the date that termination would have occurred if notice had been given, and the employer should calculate payment under reg.14 accordingly.


www.acas.org.uk/index.aspx?articleid=4540

"To avoid later disagreement, some employers include a payment for any holiday that may have accrued during the period too, even though they may not technically be required to."

NewtsSuitcase · 28/11/2017 07:45

Really don't want to fight. I'm quite conscious of the fact that it makes me sound like a knob but with the number of people who pile in on these threads without any knowledge of the law I do so in the hope that its assists people to sort through the information.

NewtsSuitcase · 28/11/2017 07:59

There is a particular scenario where the relevant date for redundancy can be modified under s145 ERA but that is where the employee would have qualified if they had been served with statutory notice and unfortunately that doesn't apply in the OP's scenario since her statutory notice is only 2 weeks not the 6 months. She's still 3 months off her 2 years.

JoblessMum1 · 29/11/2017 17:03

Thanks to everyone who replied.

I had my meeting and said I had taken advice.
Just didn't mention it was from mumsnet! 😬

They are not budging on holidays (other than to pay holidays up to the end of this year so not for the 6 months) but I have agreement they will pay their pension contribution from the final payment (it's a significant sum into the pension pot) and also that they will continue bupa cover to the end of the year.

I still don't feel good about it all but at least I got some concessions.

Onwards and upwards now and trying to find a new job

OP posts:
PersianCatLady · 09/01/2018 13:57

If I were you, I would NOT resign because if you need to claim benefits in the near future it will be harder as you will be deemed to have left your job voluntarily.

PersianCatLady · 09/01/2018 13:58

Do they have a reason for letting you go? Have they been down any disciplinary routes etc?
They don't need to have a reason or go down any disciplinary routes.

lougle · 09/01/2018 14:29

I don't think this can be right, though, NewtsSuitcase? You're saying that if the OP had only been entitled to Statutory Notice, then she'd qualify for redundancy, by virtue of the rules about extension of service by tribunals to protect employees who are terminated with PILON to artificially shorten their length of service to avoid redundancy. I understand that legislation and I'm familiar with it. However, because the OP has a contract that gives a preferential notice period of 6 months, and is being given PILON of 6 months, 3 months before her 2 year period, she doesn't meet the criteria for that legislation?? I disagree! She is still in the same situation, that her service has been artificially shortened to avoid her reaching 2 years' service and qualifying for redundancy. It just happens that she'll be 3 months short of 2 years by her actual leaving date, but if you take into account the further 6 months she should be there, she'll have 2 years & 3 months service. An employee that they would normally apply the legislation to would have 103 weeks service when they actually leave, but if you take into account the further week they should be there, they'd have 2 years service.

PersianCatLady · 09/01/2018 14:40

An employee that they would normally apply the legislation to would have 103 weeks service when they actually leave, but if you take into account the further week they should be there, they'd have 2 years service
I think that you are right.

I had assumed that the OP had been given notice today for November 2018 and had therefore the 6 months notice had been taken into account.

BakedBeans47 · 10/01/2018 19:04

You're saying that if the OP had only been entitled to Statutory Notice, then she'd qualify for redundancy, by virtue of the rules about extension of service by tribunals to protect employees who are terminated with PILON to artificially shorten their length of service to avoid redundancy

No she wouldn’t as the statutory notice was only one week so she’d still have been well off two years’ service.

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