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.

OP, are you saying the one month per year of service was part of your employment contract or a contractual policy? That is your first hurdle, as any non-contractual policy can be disapplied or changed following a TUPE transfer. If it was contractual, and on the understanding there have been no attempts to move you onto different terms and conditions following the transfer, your second hurdle is proving it. Do you have any colleagues of a similar vintage (if I may!) who do have their original contracts with the redundancy terms in them? If so, you could use that as evidence that the redundancy terms applied at the time you joined and therefore should be applied to you.

Alternatively, you could make some kind of custom and practice argument if the company has continued to pay in line with the enhanced terms since the TUPE transfer.

They can. They cannot make a change where the main reason is the transfer, but they can make a change for economic, technical or organisational reasons. See Business transfers, takeovers and TUPE: Transfers of employment contracts - GOV.UK, in particular the section "After the transfer". Contrary to what you seem to think, TUPE does not mean your contract is forever frozen and your employer can never change it.

@prh47bridge The new employer can change an employee’s terms and conditions if the reason is an ‘economic, technical or organisational reason’ (ETO) involving changes in the workforce or workplace, such as a result of redundancies or a move from a managerial to a non-managerial position. The employee needs to agree to this change.

last sentence ? Did you miss that one ? I haven’t agreed to any changes or signed a variation

your employer can change their redundancy policies at any time so you can’t count on your memories of what was in place 30 years ago.

so yes the employer can do this

No, I did not miss this one. Employee agreement is not required if the terms of the contract permit the employer to vary it - The Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 4(5)(b). Also, you say in your OP that you don't recall knowingly agreeing to a change to your redundancy terms, but you admit that you may have signed paperwork without realising the implications. It is, therefore, possible that you have agreed to a change. You now say definitively that you haven't agreed to a change or signed a variation. Which is it? Are you certain that you have never signed anything agreeing to a change in the redundancy terms as you now say, or is your OP correct?

The other problem you have is that you don't have a copy of the contract which you believe gave you these extremely generous redundancy terms, so you can't prove your employer was ever contractually bound to give you this much redundancy pay. To get what you believe is owed, you will need to get hold of a copy of this contract and prove that this term existed and was a contractual commitment, and that it was not varied by your employer prior to the takeover. Even if you succeed in that, if you have signed anything as part of the takeover process or since the takeover agreeing to a change without realising the implications, you will lose.

To be honest, even if an employer did offer redundancy terms this generous, I would expect them to put a cap in place so that a redundant employee doesn't end up with several years' salary as redundancy pay.

Unless you've signed new terms then to are correct your original ones apply however the obligation is on you to prove your terms if you don't have a copy of them I don't see how you're going to do that I'm afraid. They'll honour your length of service so you'll get the max statutory payment with your long service do the company offer any enhanced terms?

We’re being TUPEd at the moment and it’s been agreed to protect the enhanced redundancy package for 18 months and then it becomes the new company redundancy package. My original contract just stated redundancy would be at the company package at the time allowing for change!

You need legal advice which you can get through Citizens Advice.

Your best bet is to contact Acas. Generally your terms and conditions will remain the same indefinitely. If your employer wanted to change them you would have had to have a full consultation.

Companies often cap at 12 years so you effectively get a year’s salary.

Yes but you don’t have your original contract, which is what they rely on you not having at times like these. I work for a company which was TUPE’d over and I asked company to do me a new contract for school hours only and no weekends and they did it and there’s nothing new company can do because I have it in writing! X

This is a qualified response.

In a TUPE transfer, what is now known as Employee Liability Information (ELI)& previously just referred to as Due Diligence is sent to the employer that are receiving the transfer. This should contain any information that is contractual for the transferring employees.

Redundancy policies generally are not contractual & it is possible that the current employer does not have a copy of your original contract. The only way of evidencing enhanced terms will be by finding reference to this yourself. If you have ever had a promotion, then it is likely that you have accepted the terms that the employee currently operate under. Whilst TUPE will protect your length of service, it will not protect all enhancements if you essentially sign a new contract.

Others have commented upon payment for solicitors, but this is only if you are exited under a settlement agreement rather than a straight Redundancy process. You also are not necessarily entitled to receive your notice in lieu (PILON). You can be required to work your notice or be placed on garden leave.

How do you know you’ve not agreed to it? You don’t even know what your original contract says!

OP, there is ALOT of incorrect information on this thread so please don't rely on the information you've been given here. Please contact your company's HR department, ACAS or an employment lawyer.

I'm an HR Director and have been in HR for 15 years. @Bumblefuzz has summarised the answer perfectly and is correct.

Agree with this. Have worked for (and taken redundancy from) two large multinationals and in both cases, redundancy terms were never part of your employment contract. Making it non contractual allows the business the right to amend the terms being offered as and when they wish.

Who is your employer? If central government then there’s been changes through the years to redundancy terms and pensions that have been imposed.

I used to work for HM Customs & Excise which later merged with Inland Revenue to form HMRC so all employees were TUPE and length of service retained.

Our redundancy terms were also 1 month for each year of service (capped at a maximum of 21 mths) but the government sought to change that to 3 weeks for each year of service (capped at a maximum of 15 mths) and this was imposed, even though it was a change to the original T&C we signed up to. I was made redundant in 2022, but due to a fight back from PCS union our original redundancy terms were reinstated and we got the full 1 month for each year capped at 21 mths. I believe the new terms are now imposed though for anyone going through redundancy since then.

I’ve worked in a few companies now and been through several redundancies. I’ve never known of signing up to a redundancy agreement at contract/before starting the job. Usually it states months of notice, which means that you have to give x months of notice before you can officially leave. This is usually 1-6 months. Some times companies will pay you for these months of notice but not always. Companies are not obligated to pay you enhanced packages and can just stick to statutory. I believe it is at their discretion.
Redundancy terms are usually negotiated at the time of redundancy and not at the start of a contract, and this can change each time, depending on what they decide. I have been in the same company and through 4 redundancies, and each one offered different terms.
Usually during TUPE you have to sign a new contract, as original contracts are all unique and terms can change frequently over the years, so it’s really important that you compare your new contract to your old one to make sure you are happy with it before you sign.
Another point to note is that usually during redundancy, months pay is usually capped. In my experience this has been 10 years, so even if you worked 11, 15, or 28, you will all get 10 months maximum. It will be worth you finding out exactly what the terms of the enhanced package is.

TUPE would definitely protect you length of service, however redundancy is normally a policy rather than contractual agreement and enhanced pay can change over time, normally employers will pay for policy for different periods, I had a colleague leave recently and his package after 20 years was combination of different policies, i.e. 10 years at 4 weeks per year, 10 years at 3 weeks per year based on the companies policy over that time period.

i was in a similar situation and was made redundant 2 years ago. I originally had an NHS contract and was TUPEd to a private contract.
during my (very unexpected) redundancy meeting they tried to fob me off with statutory redundancy, but my TUPE letter said my original contract and ts&cs applied as per the employer handbook. Luckily there is an NHS handbook online and this clearly stated the ts&cs around redundancy. I then had to prove my continuous service via ESR and pension records but after this they agreed to pay enhanced redundancy.

my advice would be to review your TUPE letter and try get a copy of your original contract - HR should have this on file, and if there are any previous employer handbooks you can find, again HR might have these or may be online depending what sector you work in. ACAS were also incredibly helpful and if you’re in a union I’d give them a call as well. Good luck x

This is what your solicitor is for. To advise you and make sure you are happy and understand your agreement.
I would appoint one as soon as possible and run your situation past them. My TUPE was a box ticking, like for like, exercise, however I work in payroll and when we TUPE people in we have to honour any contracural differences.