Redundancy questions

[isthisabitdodgyorok]

I hope someone can help.

My brother works for a company that are looking to make redundancies. Volunteers have been sought and they have been told that if they agree to forgo their notice then they will get a slightly better package than if they work their notice. He has been there since he left school so looking at direct.gov I can see that he should be entitled to 12 weeks notice.

He has asked if he will be paid the notice instead but he has been told no. Is it possible to agree to forgo your right to statutory notice? In my limited experience of employment law as a manager myself, I've always been told that this isn't possible.

I've told him to ring ACAS etc but he can't do this until Monday. Any ideas?

They can't force him to leave without his statutory notice but it perfectly possible for an employer and employee to mutually agree an earlier leaving date. This is common where notice periods are long, the employee has a new job he/she wants to start and the employer doesn't want them hanging around.

What do you mean he has asked if he will be paid his notice instead? Instead of what? Sorry that's not clear.

The advantage will be if someone thinks they can get a new job earlier than the end of their notice period- they will benefit from being freed up earlier and getting a bit of extra money. For anyone who feels they are unlikely to get something that soon, they will be better off taking a basic redundancy package and working their full notice. They will still be entitled to reasonable time off for interviews etc

They have told him he can have the enhanced red package if he leaves in two weeks or have a reduced package and leave at the end of his 12 weeks. They can't/won't tell him what the package would be at the end of his notice. He doesn't have a job to go to and feels like he is being forced into agreeing this now.

Thanks for the advice. I am trying to give the relevant info without satin too much.

Just to be clear, it feels wrong to me that they are trying to force him out of his statutory notice.

He's not being forced, from what you say, he's being given the option; he's being given an incentive to do one rather than the other.

It's weird they are not telling him what the package would be at the end, particularly if they would prefer him to leave earlier. He should assume it will be basic redundancy only- his minimum entitlement, although as I say, if they want him to take the first option it's strange they are not emphasising it will be statutory only otherwise.

Is there something else happening that you can mention that is adding to the feeling of being 'forced'? It's just taking what you say at face value, it sounds like two options he can choose from, one a basic package ensuring he is not being denied his legal entitlements, and the second one giving him a bit of an incentive should he choose to leave earlier.

The only thing I know of is that the better redundancy scheme has been in place for years, and they are in the process of changing it to something less beneficial, as yet undefined. They had a scheme which has been in operation for years but has actually never been used before. Now that they need to use it they have found (so my brother says) that it is too expensive.

I agree that he isn't really being forced out but it feels wrong that he worked there for so long with that scheme, 12 weeks notice etc and now that his job has gone, he has lost all that protection.

It is hard to articulate. He has said that more redundancies are on the cards and that they will get a lot worse than he, but they haven't started consulting on those yet.

I guess I thought a statutory entitlement would be exactly that; a minimum guaranteed entitlement that could be relied on. He is pretty worried about losing his job but had relied upon the 12 weeks pay and the redundancy package that had been previously been explained to him.

Now they are saying he can only get it if he doesn't have 12 weeks notice, whereas before, when the consultation started, he was told it would be 12 weeks plus the redundancy compensation.

Does that make more sense? From what you are saying it sounds like it might be legally OK, even if morally it feels a bit dubious. Poor bugger.

Yes a statutory entitlement is just that, a minimum guaranteed entitlement that can be relied on. There is no indication he won't get the statutory minimum though is there? He can rely on it.

On the other hand if the enhanced option is contractual, they can't just take that away. Is that the case? You didn't say anything to indicate that earlier, just that it was enhanced if he leaves sooner, basic if he doesn't.

They are saying he will only get the enhanced scheme if he goes in a few weeks, without getting his statutory notice. If he chooses to stay for the full 12 weeks then they are saying that the former scheme will no longer apply and it may be x, or, y, but definitely not as good as it was.

I'm really sorry if I'm not making sense. I was pretty shocked when he told me about it, and I'm also trying hard not to say anything that someone might be able to identify him from.

When they first consulted over the redundancies there was no mention of the scheme changing. It was available on the staff internet but has now been removed.

Yes I understood that. So he can rely on his statutory entitlement; he can elect to work his full statutory notice and still receive statutory redundancy pay. He will just get more if he choose not to work his full notice.

It's quite important if there was an enhanced contractual redundancy scheme. Is there a union or employee reps who are being consulted?

Yes there are, I understand. But no agreement has been reached with them as yet and he has been told that it is definitely changing whether they agree or not as it has already been signed off by the Directors.

It's not as simple as that - an employer can't just say a change to terms and conditions is definitely happening just because Directors have said so.

If there was previously a contractual redundancy scheme of x enhanced redundancy pay plus statutory notice - part of everyone's terms and conditions of employment they can't just withdraw it because some Directors say so. Forcing through a change to terms and conditions can potentially be done but it's not that easy.

If it wasn't contractual then it's just a case of him deciding which option is better for him financially.

The reps/TU should be on the case in terms of the previous scheme and whether it was contractual or not.

I guess what I was thinking is that he can't access the scheme that has always been there without losing his notice pay. I know it might seem a bit grasping to some but he isn't particularly well-paid and finding another job will take time.

He has been told, informally, by the unions that the deal may get a lot worse and he would probably be better off going for the early leaving date.

I really appreciate you answering these questions Flowery. I've heard that you have a good reputation on here and I'm really thankful for the advice.

How can we tell if it was contractual? I've just been on the phone and they've said that he has to sign an agreement next week if he wants to go early and take the old deal.

He said the scheme was published on the internet and has always been there. He said that a few of them would occasionally calculate what they'd get if they were to go, which is how he knows it has been there for so long. He is feeling pretty glum about it all.

He hasn't been able to get hold of the union rep.

No problem.

I don't think it's grasping, for the reasons you say, and it isn't particularly fair either, but it really depends whether this enhanced scheme is part of his terms and conditions. If the union are involved and knowledgeable and are accepting this situation I imagine it probably isn't contractual, or not clearly so.

He should work on the basis that he will only get statutory redundancy pay if he stays the 12 weeks, and decide whether to go early based on that.

Statutory redundancy pay is 1 week's pay per year of service(capped at £380 for a week's pay I think it is), plus obviously his notice which he will have to work.

He knows what he will get if he leaves now; enhanced redundancy plus 2 weeks pay, so it's just a case of balancing the totals and seeing which is best.

The fact that they haven't specified that those who stay will only get statutory basic might indicate that they will get a bit more, just not as much as they would if they left now, but I imagine the union have done those calculations as well.

It's likely to be contractual if the same scheme has been used several times, on each occasion (ie not varied at all), and is communicated to employees.

So if it's been in place ages and has been openly available on the intranet, and there have been several redundancy programmes during which everyone has got the scheme, then it is likely to be contractual.

It sounds like it is contractual then. I'll tell him to keep trying the union rep. I just hope that he doesn't run out of time.

Thank you for all your help on this.