Redundancy Question

[AJMurphy1986]

Afternoon All,

Just had the bad news that I am having my contract terminated "with effect from 31st July."

I am currently on furlough leave, and whilst the timing of this decision is cynical in order to not have to pay me redundancy, I am wondering if they have made a mistake with their dates, which may make me elegible.

I have my original contract which states "The employment shall commence on the 30th of July 2018 ("the Start Date") and shall continue untill terminated in accordance of the provisions here of."

If my employment started on the 30th of July 2018 and is terminated as of the 31st of July 2020. Was I not technicall employed for two years and therefore eligible?

Is this worth following up with professional legal council?

Thank you in advance

[ULA]

Hi, I am sorry but I will need to ask some more questions to establish the facts more clearly:

Are you on a fixed term contract or a permanent contract?
If on a fixed term contract what is the end date?
If on a fixed term contract is there an early termination clause?
It may also be helpful for you to post up the provisions regarding termination.

Many thanks

[AJMurphy1986]

Thank you for your response.

I was employed on a permenant contract, not a fixed term one. I recieved the letter today via email after a brief phone conversation with my line manger.

I had a three month probation period which I was well out of. I had no disciplinaries, and my performance reviews were always positive.

I have attached a redacted copy of the termination letter and the termination section from my contract.

Are they also able to force me to take the holiday I have, rather than paying it to me?

Thank you again for taking the time to reply,
*

[ULA]

If you joined on 30 July 2018 and your contract is terminated effective on 31 July 2020 then by my calculation that is two years service in which case a redundancy payment would be due, since the letter clearly states that effectively there is a downturn in business and there is no longer a requirement for the job that you do. Has any redundancy consultation taken place with you?

In regard being required to take holiday as part of your notice then yes an employer is allowed to request that you do this - do you have a clause in your contract to that effect?

I would suggest that you raise an appeal on the basis of the fact that as at your date of termination you have 2 years service and that since it would appear you are being made redundant you are entitled to a redundancy payment.

[AJMurphy1986]

Thank you again for your reply.

No redundancy consultation took place. I was called, told my contract would be terminated due to covid-19 and then recieved the email. Not even the courtesy of a meeting.

My one concern would be that they are affording me a notice period until the end of the month, if I was to appeal, could they just reduce that notice period to one week, therefore making me inelligible? Would it be best to wait until the notice period they have outlined is over as it is longer than is stated in my contract? Or at least until my final pay hits the bank?

From ACAS website -

A claim to an employment tribunal must usually be made within 3 months less 1 day. This is known as the 'limitation date'.

For example, if an employee wants to claim for unfair dismissal, they have 3 months less 1 day from the date their employment ended to make the claim.*

If it's*a*claim about redundancy pay or equal pay, the claim must*be made within 6 months.*


From speaking to the other members of my team, this seems to be a case of cost cutting and favouritism. I'm told a junior member of the team will be brought back from furlough and trained to replace me in August, then someone else hired to replace them, so as far as I'm concerned my job still exists and the covid 19 situation is being used as an excuse. Perhaps even a wrongful dismissal claim? Although I realise I may now be clutching at straws,

[ULA]

If you wanted to make a claim then you can do this after your notice period has ended but it needs to be within 3 months less a day from 31 July 2020. You would need to start with the Early Conciliation process via ACAS - link below

https://tell.acas.org.uk/find-a-solu...oyment-dispute

I would however suggest that completing the internal process by raising an appeal would show that you did exhaust this process before making a claim.

[AJMurphy1986]

Thank you Ula,

I have spoken to Citizens Advice (employment law expert is going to return my call within five days) and ACAS today.

The ACAS advisor was very helpful and suggested the same thing is you. When I mentioned in the letter they have given me 10 days to appeal, and my concern that if I was to appeal, they would simply reduce my notice by two days (or more) therefore denying me these rights, she mentioned there is no time frame set in law to appeal an unfair dismissal to your employer, and that the timeframe they had set out just means they will may just choose not to here my appeal. I would still be able to proceed with ACAS.

I think my decision is to wait for the 31st of July and then begin the process, by in the first instance appealing the decision with the company.

Would it reflect badly on me if I was to appeal after their seemingly arbitrary deadline? If I was to appeal late, would I set out the honest reason that given their behaviour to this point I did not trust them not to alter my termination date to deny my rights?

*

[ULA]

The standard for most companies is to hold open the ability to appeal for a period of time after the decision as been made. The typical norm is a range between 5-10 working day for a company to require any appeal to be made. If a company sets out a timescale to make an appeal then as the person at ACAS has stated they will not be obliged to hear your appeal if it is received after the time set out (unless there is very extenuating circumstances) and can therefore reject it without holding a meeting.

You can start the process with ACAS whilst also putting in an appeal and seeing if the company will accept this out of time.

[AJMurphy1986]

Hi Ula,

On the advice of a solicitor, I put the appeal in straight away and they responded how I expected, by reducing my notice by two days.

This will still bring me over 103 weeks service, which the solicitor mentioned was the real cut off.

They have not addressed any of my concerns regarding the process and have refused a hearing.

I have contacted ACAS and asked the to start procedings after the 27th of July.

Have they shot themselves in the foot here? Should I hire the soliciotor now or wait until early conciliation is finished?

Apologies for the barrage of questions but I am impatient and will struggle to wait for two days to speak to the solicitor again!

[ULA]

The disadvantage of law firms and standard hours of business!

You need to have been employed for a minimum period of 23 months and 3 weeks with the same employer to make a claim for unfair dismissal- and not already been served with notice that expires before 2 years employment.

Legally as far as I am aware there is actually no right of appeal in what is effectively a redundancy situation, given what they have said in the correspondence to you. However that said many companies do offer an appeal process in redundancy and having given you this right they should have gone ahead and heard the appeal.

I am not sure what financial situation you are in however I would suggest that the first part of the conciliation process i.e. completion of the form, initial discussion with ACAS etc are probably things that you can deal with direct without the need for paying for a solicitor to do this on your behalf.

[AJMurphy1986]

Thanks Ula,

This leads me to believe I may well be in trouble now, as they served the notice originally on the 10th of July stating the 31st, and now revised it on the 17th stating the 29th.

Are they allowed to change the notice period if the only reason is to deny me my rights? Is the original notice legally binding in terms of date? They have claimed in the second email it was an oversight? Can I claim the appeal process was unfair, as by appealing I have now been denied my rights, that I wouldn't of been denied had I not appealed.

[ULA]

Not sure if you got advice from the solicitor as to the grounds of the appeal but on what basis did you appeal?

What correspondence have you had from your employer in regard to changing your notice period date from their original correspondence?

Please make sure you keep copies of all this correspondence.Â*

[AJMurphy1986]

Hi Ula,

The solicitor recomended appealing with everything I could to "put them on the back foot"

I have attached redacted versions of my appeal letter and the response. The response was via email with a new termination letter attached, same wording as the one earlier in the thread, but with ammended at the top and the 29th instead of the 31st.

[ULA]

Thank for the uploaded copies of your appeal letter and subsequent response from the company.Â*

Furlough was introduced to support companies and in actual fact the real “spirit of the scheme” was to avoid the need for companies to make redundancies. That being said it has not avoided this happening.

Your employer is now trying to amend correspondence ofÂ*10 July 2020 to reduce the extended notice period previously given to bring you below the 23 weeks (safety) for being able to make a claim.

We are in unchartered employment law territory in regard to how the government initiatives sit alongside established employment legislation. I am really unsure as to how a Tribunal, in this instance, would view a claim that given the most recent correspondence would be out of time but has come about as a result of an appeal lodged but not heard, for a claim that would have potentially be in time supported by the correspondence of 10 July 2020. Â*Â*

My view is that potentially you could make a claim, ensuring all the facts are stated and see how the Tribunal decides to proceed. If you get to speak to your solicitor on Mon they may have a different view but it would be interesting to see what that is.

Â*

[AJMurphy1986]

Thanks Ula,

Final thing that's going through my brain.

Is their an agreed legal definition of a year? I've googled it but only found American law, and the fact that it is constantly disputed.

When counting a year you go from Jan 1st to Dec 31st. You dont count the next Jan 1st. So would it not follow that July 30th 2018 to my effective date of termination on 29th July 2020 is a period of two years?

I will keep you updated after speaking to the solicitors on Monday. I think I may have to involve them now, as it doesn't look like my employer is going to play ball.