Unfair redundancy

[nola1964]

Hi
First post so any help will be greatly recived
I was recently told i was being made redundant from my job as Plant Manager of a small automtive manufacturing company.
This process was done very poorly by the Managing Director the bullet points are..
1)

[nola1964]

sorry nort sure what hapend there
a) there was no consultation
b) i walked in on Monday and was told i was being made redundant leave at the end of the day
c) i was put on gardening leave ( which i am still on) for 6 months as this is the notice period in my contract.
d) even now 6 weeks later they have not stated what my redundancy terms would be
Due to the company not following any proceadure i started a formal grievence with the chairman of the board.
This is being done by Zoom calls.
Without actualy saying it at the first meeting he implied that i was right.
He asked me what i wanted and i asked to be released from my contract straight away and enhanced redundany terms
To my urprise they came back with a counter offer. This is..
a) they reinstate me but keep me on furlough
b) the chairman of the board would then start the redundancy process again and in his words do it properly
c) in his words again he does not know what the outcome would be.
One thing to note..
I know that in the month of February when i was on my notice period the company claimed furlough money for me. They also know that i am aware of this becuse i pointed it out to them.
To me i am in a possition of strength at the moment if i agree to be reinstated and go through the charade of doing the redundancy again this weakens my possition
Any advice please
I have asked them to put the offer of reinstatement in writing and i am waiting for this to arrive
Thanks in advance
nola

[paulajayne]

Redundancy is the job itself no longer being required.

You are not made redundant but the job is.

So are the company not going to have a Plant Manager?

[nola1964]

PaulaJayne
Thanks for the reply
As i said there was no consultation so i can only sumise that they will be doing away with my role.
At the time i was job sharing with the General Manager. He would do a week then i would do a week. The one not at work was on furlough.
I have had to make quite a few people redundant and i know this is not the right way.
Thanks again
nola

[ULA]

If your position is being made redundant i.e. the role is no longer required, even if you are the only one in that role, then there needs to be a period of consultation, it may not be of long duration but it still needs to take place. So they have not followed due process.

Not sure why they put you on garden leave but if they have done this then effectively your redundancy will not actually occur until the end of that 6 month period. Do you have a garden leave clause in your contract?

If they had carried out a proper redundancy consultation then as part of that you should have been provided the details of the redundancy terms i.e. what payments you would receive.

In regard to furlough since 1 December 2020, an employer cannot claim for any days during which the furloughed employee was serving a contractual or statutory notice period for the employer. Effectively being placed on garden leave means you are in your notice period. Therefore they cannot claim your notice period under the terms of the furlough scheme.

I think the main question is what is the outcome that you are looking for? This is something that you need to consider whilst you are waiting to receive written confirmation of the current offer.

[nola1964]

Thanks ULA
I have requested in writting that i be released from my contract and that the company pay me In lieu rather than have me sitting at home being paid on garden leave
Yes i do have a gardening leave in my contract.
I belive that the only reason they did not pay me in lieu was that they thought they could continue to claim furlough for me.
In my letter to the company i have asked for
a) Six months salary as per my contract
b) Six months holiday pay
c) Six months car allowance
d) A small payment for the shares i have in the company
e) £4,000 in statutory redundancy plus £16,000 in enharnced payment.
Can they make me go back just to face redundancy again
if i refuse this will it go against me in a tribunal where i think this may end up
nola

[ULA]

a) I presume this is effectively you wanting them to pay in lieu of notice (PILON) is there a clause to cover this in your contract?
b) If they agree to PILON then holiday only accrues up until your termination date so they would not have to compensate for what would have been your notice period. Just so you are aware if they push back on this point.
c) Is your car allowance a contractual benefit? If not then the company do not have to compensate you for this under PIILON terms. This is again so you are aware if they push back on this point.
d) Yes they would need to compensate you for buying back the share. In terms of admin you would be required to complete a stock transfer form.
e) I presume the first figure you have calculated is your statutory entitlement. Does the company have provision for an enhanced payment? If they do not then I guess this is your negotiating point for lack of process.

They could ask you to return, and follow the correct process, however this would not potentially stop a claim being made for unfair dismissal.

If I was them and they know they have messed up I would negotiate the terms with you but then ask you to sign a Settlement Agreement, that way you would not able to bring a subsequent claim against them. It might be something that you suggest that you would be willing to do.

[nola1964]

Thanks ULA and everyone else
First a clarification on the points made by ULA
a) a PILON agreement is spoken about in my contract but this is an alternative not a requirement
b) Understood
c) I currently have a company car which the company have told me i can keep to the end of my notice period ( very generous but you and i know that have to) So i want the Contractual payment of £500 per month paid for the length of my notice period and for them to take the car back.
d) Understood
e) yes you have hit the nail on the head. The £16k is for not following the process and pain and suffering (which i now think is being enhanced by them asking me to be reinstated and go through the whole redundancy process again)
As far as i am concerned they have already made the decision to make redundant which they have put in writting. I am now just seeing out my notice period. They have again written to me to rerquest that i accept their offer of reinstatement and then to follow the correct redundancy process which in their words "At this point, as consultation has not commenced, the company is unable to confirm the outcome of the redundancy process."
They have now started to put pressure on by saying that this offer needs to be accepted by 4pm tomorrow (18th of March)
I have not actually said the words "settlement agreement" in any of my correspondence do you think i need to? Or do i wait for them to use these words.
My big fear in this whole situation is that i accept their offer, i then lose my position of strength. They offer me an alternative role and then find a jumped up reason to fire me and i lose everything. If their intention was honourable then why not offer me my job back without the threat of redundancy?
Thanks again for your help. I hope i can count on your assistance in this time critical situation.
nola

[ULA]

Sorry we are all volunteers and I work my time on the forum around other work.

I am wondering what action they think they are going to take if you do not respond by tomorrow afternoon other than use the fact that you turned down the opportunity to be reinstated in their defence against a tribunal claim, however I am not a lawyer. If you do not agree to their offer, you have written confirmation that you have been made redundant and they will have to make the statutory redundancy payments even if you remain on garden leave.

Given the situation and the fact that they have only offered this once they realised they had messed up on the process, you could go back to them and state that all trust and confidence in them to carry out a fair redundancy procedure has gone and on that basis you cannot accept their offer. They will have to make the minium statutory payments but for them there is still the concern you may make a claim for unfair dismissal and to avoid such a claim they may consider entering into a settlement agreement with you.

[nola1964]

Thanks ULA your advice is always wellcome and very well put.
Just to keep you upto date i have sent a response today basicaly telling them that i do not acept thier offer and that i do not belive they would conduct a second redundancy process without prejudice. I have stuck to my guns with the request for a greater settlement and i have actual called it a settlement agreemnet. I have also told them i have instructed my solicitor and that we are prepared to go to tribunal for unfair dissmisal.
I will keep you updated with any response
thanks again
nola

[nola1964]

By the way they still have not told me how much statutory redundancy i am to get ( i know because i worked it out myself) surly this is yet another thing they have messed up

[ULA]

Will be interesting to see what they come back with and please keep up updated.

Yes at the time they confirmed your redundancy in writing then they should have also confirmed the payment due to you.