Redundancy

[happy20218]

Hi all, for transparency I have worded this through chat gpt as it’s all very technical , I’m a terrible speller and I wanted it all worded correctly . No offence intended .

I’m hoping for some advice as I have a redundancy consultation coming up and I’m unsure where I stand.

I started work at 16 and I’m now 46, so I have 30 years’ continuous service. The business I originally worked for was later taken over, and I transferred across and continued in the same role (same job, same work), so TUPE should have applied.

I believe my original contract stated redundancy would be one month’s pay per year of service. I don’t currently have a copy of that contract (it’s from when I was 16), but over the years my long service has consistently been recognised . I’ve received a 30-year service award and extra holiday entitlement linked to length of service.

I don’t recall ever knowingly agreeing to a change to my redundancy terms, although I appreciate it’s possible I may have signed paperwork over the years without realising the implications. I’m now being told about statutory redundancy + notice, but I haven’t yet been given anything in writing.

My questions are:
the business was taken over and TUPE applied, would an enhanced redundancy term like one month per year normally transfer unless lawfully changed? my long service has continued to be recognised (bonus, extra holiday), does that help evidence that legacy terms may still apply? my employer can’t produce my old contract, where does that leave me? if I did sign something years ago without understanding it, does that automatically cancel old redundancy rights?

I’m not trying to be awkward … I just want to understand what’s reasonable before I agree to anything.

Any insight or similar experiences would be really appreciated. Thank you.

The problem you have is that you have no access/ clear knowledge, to whatever your most recent employment contract stated regarding redundancy entitlement.

this is relevant because the employer will rely on whatever their policy is currently universally, and as you were subject to TUPE they can eventually simulate your contract to equalise with all other employees.

Your only recourse would be an employment tribunal.

If you are TUPE'd your original start date applies. I am being made redundant. I have 15 years service. 10 with company 1 and 5 with company 2. (TUPE) I will get 15 weeks statutory redundancy. This will also apply to any enhanced payout.

Statutory redundancy is capped at 20 weeks, however most big corporations will pay out over this if you have more years service.

Any years worked over the age of 41 is paid out at one and a half weeks for each year worked.

Any redundancy up to the value of £30,000 is tax free.

Your company also has to pay for a solicitor to advise you. Your settlement agreement will state the amount. Normally circa £500.

You will also get pay in lieu of noticen(PILON) This is taxable. So if you have to give five weeks notice to leave your job, the company have to pay you five weeks PILON. Again this will be in your settlement agreement.

You will also be paid any accrued but unused holiday days. This is taxable and the number of days detailed in your agreement.

I thought the whole point of tupe is they can’t simulate to match everyone at all… they have to honour my old contract of employment & the absence of a contract doesn’t mean it’s not a valid.

Call ACAS - to my knowledge TUPE only applies on the day of transfer.

@astrawas your contract a statutory redundancy I assume . I’m under the impression mine stated a contracted redundancy agreement of one month per year plus 3 months plus holiday . It’s 18k vs 72k so a massive massive different and one I’m sure they will try to argue with me on . Sorry you are going through this . It’s rubbish x

@Arlanymor I think the transfer date is correct but the old contract applies from the date of the transfer and can only be changed with a variation or a new contract . The effects of tupe should last for the lifetime of the contract I’ll give them a call thank you x

No TUPE affords protected contractual rights for an unspecified period (legal commentary is one to two years) before the employee rights of in coming staff are assimilated.

As to an absence of contract a verbal one can count but you would have to be clear about that and have some form of evidence

Gotcha, I think lots of people get caught out by what TUPE and isn’t and what your old company has applied to the new. Definitely get on the line to ACAS tomorrow. Wishing you all best. Xxx

@Hedgehogforshort I think the 1/2 years is where they can attempt it change it from what I’ve read but I haven’t signed anything or been given any form of variation to my original contract , would the fact that the original contract terms would be widely know across the old company with many many people on the same redundancy terms help ? Surely if they could rewrite it after 1/2 years Tupe would be totally pointless as companies would just wait it out

They may try and say the redundancy policy is non contractual. I used to work for a bank that paid enhanced redundancy and it was all over the policy it was non contractual. Presumably for the purposes of that exact eventuality that we ended in a TUPE.

I think you’ll need to try and find a consistent applicatIon of the policy to try and determine that it has been so consistently applied that it is effectively contractual.

Your knowledge is zero then

what would be the point of legislation that only protected employees rights for one day?!

I think the OP’s biggest problem is going to be demonstrating a contractual entitlement to the enhanced pay in the first place.

@Alpacajigsaw hmmm yes interesting, I really could do with a copy of my contract . I doubt it’s even on file

Your old contractual terms and conditions will be preserved by TUPE, but how are you going to prove what those terms were without a written contract? Otherwise any employee could make anything up and demand enhanced rights post transfer which never existed.

Without any proof, there’s not much chance of you winning that argument unfortunately.

Redundancy is usually a policy not a contractual term. So it doesn't fall under TUPE. It would be a rare contract that specifies what the redundancy terms are.
So your start date should be the date you started at the first company but if they have a policy that says statutory redundancy only then unfortunately that's all you get.
Do you know any other people who have left under redundancy? They may be able to tell you if they got statutory or enhanced? Check the policies (see if there's an old one). If they have just applied this to you (due to your long service) then you could claim discrimination.

I was a TUPE transfer. I’d worked at the new company for seven years before they wanted to make voluntary redundancies. I enquired to see what the payout would be, and the terms were definitely those of my original contract, with the original notice period. It had not been changed to bring it in line with the new company contract - very large global company.

In theory your contract prior to TUPE could still be valid. Where I work, people are still on the old contracts (prior to TUPE) but if they want to apply for a new role or promotion in their new company they will move to a newer type of contract.
Can you not ask HR for a copy of your contract?

It would be pretty unusual for a redundancy policy to state 1 month / year entitlement as this far exceeds the statutory redundancy pay regulations. I could imagine that an exception would be if you were a CEO or some other highly paid role - what is your actual job title? I’m assuming that as you’re looking at £18k for 30 years then you’re currently on around a salary of £32k pa. Why would your employer make you redundant knowing they’d have to pay you over 2 years worth of your current salary? honestly, I think you’re mistaken about the week vs month issue here I’m afraid.
In addition, redundancy policies can be changed at any time so if this has been the case you would have been notified of it.

I’m an employment lawyer, the position is:
TUPE could protect your terms IF it was a term of that contract. So if, as you believe, it was clearly set out in the contract you signed AND that has not been superseded by a new contract or any other variation to your terms at any point in the last few decades THEN it could still apply.
BUT you have the burden of proving it was there in the first place. So if no one had a copy of the contract and you don’t know anyone who could confirm it was there ( except you) then that will likely be difficult to do. If you could find a copy of the contract or a witness then the burden would effectively shift to your employer to prove it had been superseded.
The other issue you have is that the tribunal cannot award more than £25k for breach of contract- and that’s the claim you would need to bring. So if you wanted the full difference you would have to make the claim through the county court- and there are fees and a costs regime in the court system whereas costs are extremely unlikely in tribunal.
Finally if you still wanted to sue in Tribunal you have to approach ACAS first by phone or email, within 3 months of the breach ie the failure to pay the full amount. Once that early conciliation process has been concluded (12 weeks) you can then put in the ET1 claim form to the tribunal through their online portal.

Worth some enquiries if you ask me! But be wary as if they are really worried they might just try and keep you until you retire as you’re too expensive to make redundant (if that’s an option for them).

TUPE will last for a period of time that is stated at the time, but if this is years later, it is doubtful you will retain all your original employment terms and conditions.

you should have been issued a new contract of employment by the incoming organisation. That's what you need to work with. Have you not been issued with anything in writing?

If you dont have the paperwork to prove the enhanced redundancy terms then you have no chance of getting this, other than via goodwill.
The fact youve been an employee for 30 years can't be changed by your new employer unless they have hard evidence to prove this is not the case.

No, that is not the point of TUPE. They can change your contract to bring it into line with others provided they have a good economic, technical or organisational reason to do so. And, as others have said, if this goes to court it will be up to you to prove that your old contract contained this term.

As one person stated redundancy is a matter of policy not contract. As are other things such as sickness pay, holidays etc...

TUPE don't apply in regards to these. Most companies will agree to abide to policies included in contracts for a few years, few do it for a lifetime.

You really need a copy of your original contract to see if redundancy is abated specifically or refer to in terms of policy.

All in all, your case is more likely not to stand up in court than to be a win, so make sure you seek advice from a competent solicitor with experience in your industry and consider the costs vs your chances to win.

@BerylG this is extremely helpful thank you so much

@prh47bridge@BerylG they literally can’t. That’s the whole point of it 😂

If you know people (the more tgmhe better) who would bear witness to the fact contracts had this term ut might help if it went to Emoloyment Tribunal. Have you gone to HR and asked to see your file? Id try that.