Furlough, Redundancy, enforced holiday

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[ULA]

In regard to holiday then yes your employer can request that you take your statutory leave entitlement during your notice period, however as you rightly say they will need to give twice as much notice as leave. Pro-rata your statutory accrued but untaken holiday is* 28/12 = 2.33 x 7 months = 16.31 which needs to be rounded up. Given the notice they have to give you any statutory holiday that cannot be used up during the notice period will need to be paid in addition to the bonus holidays.

Any holiday that you take during your notice will be paid at 100% salary although your employer can do this by retaining you on furlough and topping up the 20%.

It would appear that the redundancy has come about as there is a need for one less person to carry out the role that you perform. In deciding who should be in the pool for selection the company has to consider what type of work is ceasing or diminishing and then determining what each employee does on a daily basis as well as what is described in their contract and/or job description. If you are in selection pool of one then your employer will need prove that your job is unique and that there is no longer a requirement for that particular role.*

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[D_Pappa]

Hi TX264,

My sympathies for the situation you find yourself in; I appreciate how stressful this must be.

ULA has the pertinent points covered, but I do want to chime in about the enforced holiday situation.

Using the Working Time Regulations 1998, an employer can require an employee to take annual leave, provided that they issue notice of at least double the length of the leave period. However, the ability to do this can be varied or excluded by what is known as a 'relevant agreement', such as en employment contract.

Here is an example of a clause that you may see:

"The provisions of Regulation 15(1) to 15(4) (notice provisions for taking leave) of the
Working Time Regulations 1998 are specifically excluded and do not apply to your
employment."

The text above is taken directly from an employment contract at the business that I believe you work for, so it may be standard across the company. In the wording, the employer/employee have a mutual 'relevant agreement' in the form of the employment contract that specifically excludes the terms that would need to be relied upon to enforce annual leave by giving double notice.

If the holiday section of your employment contract features wording like that quoted above, it could be argued that the regulations your employer is attempting to rely upon have been excluded by relevant agreement (so cannot be enforced), and enforcing leave would be a breach of contract, and/or constitute a breach of the implied term of mutual trust and confidence (which is a breach of contract anyway).

Please check your contract, urge your colleagues to do the same, and consider consulting a trade union and/or legal advisor. Keep us updated.

Best of luck and best wishes.

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[ULA]

Sorry for any delay in getting back to you, however we are all volunteers and not always readily available.
On what basis have you raised an appeal? Is the company prepared to accept an appeal since in cases of redundancy an appeal process is not a mandatory requirement of the process.*
However on some of the specific points in your post #5 I can provide the following thoughts:
* The reasons given for the redundancy situation seem reasonable and unfortunately will be not unique given the current situation for businesses created by COVID-19.
* Although furlough is in place albeit from 1 July on a tapering basis, the scheme does not preclude a company undertaking a redundancy process.
* The selection criteria against which the "at risk pool of employees" have been assessed seems reasonable. Has your employer explained your scoring as part of the consultation process with you? If not that may be something to ask at any appeal meeting.
* It does not appear that sickness absence has been given as a criteria against which affected staff were being assessed, however it may again be worth asking this as the appeal meeting.*
Hope this helps but if you have any further questions please come back to this thread.*

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[ULA]

In regard to the issue of car and on-call allowance this may not be relevant if your weekly pay is greater than the current statutory cap which is £538. If the redundancy payment is made on an enhanced basis as long as it is in excess of the statutory minimum the company can determine what is included in which case there have been some precedents where regular payment such as you describe have been included in the calculation of a weeks pay.*
In regard to a redundancy pool an employer should include all employees whose roles are the same or similar even if they work on difference shifts and take into account those whose work is interchangeable.*

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[ULA]

In my view the car allowance and the on call allowance do have the potential to form part of your salary and should therefore be included as part of the calculation of your weekly pay. However if you are only being paid statutory redundancy there is still the cap of £538 per week.*

In regard to the redundancy pool then as stated in my earlier post*an employer should include all employees whose roles are the same or similar and take into account those whose work is interchangeable. It may be that in this instance your employer has taken too narrow a definition for inclusion in the redundancy pool.*

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[ULA]

Yes individuals that are "at risk" should all be notified they are in the pool and informed that each of them will be assessed against a selection criteria. All people would be assessed against those criteria and in this case, as there is to be one redundancy the person with the lowest score would then be further consulted with, since potentially they would be the individual to be made redundant unless there is an alternative position or some other business viable option offered.

If you are the only person to have been put on the "at risk" pool then this would lead me to believe that the company believes that there is no-one else in a similar or interchangeable role and that your specific position has been identified as potentially redundant.**