Notice of risk of redundancy validity

[EwanHusarmee]

Hello,

the company I work for has an office that they want to close. I was recruited from and worked at it until 16 months ago when I moved to an office more local to me. The company is restructuring after a merger and I have received a notice of risk of redundancy because HR records still have me as working from the original office (its still not that big a firm!), despite telling the new MD several times that I do not work there. They have stated in covering letters this is not making roles redundant, just the consequence of closing the office, so I'm 90% certain that I have nothing to worry about but ....

1) Is the notice valid given that I do not work from office 1?
2) If not should I reject the notice now in writing?
3) If not does it raise doubts as to the legality of the redundancy process?
4) If it valid, is there anything I can do during the consultation period to safeguard my position?

I have had hints from my line manager that I may be under threat because I have a contractual right to work from home 2 days a week and that they are unwilling to offer home working as an alternative to those at risk of redundancy, would this have an effect on my position if true?

[ULA]

Re: Notice of risk of redundancy validity

Did you ever get a letter confirming your change of location?

How far apart are the two locations?

If they are completely closing one office and making everyone redundant at that office as a consequence then it may simply be an oversight that you received the letter, particularly as you have worked at the new location for 16 months now. I would suggest that to get clarification on the situation that you email HR asking why you have received the notice of risk of redundancy as you have not worked at that office for 16 months. See what their response is and it could be there is nothing further for you to worry about or if they come back with anything else then please let us know the position and we can see what we can do to help.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

No letter, but my manager emailed to confirm he has now updated the records prior to the MD handing me the risk notice.

The locations are about 100 miles apart, I used to stay overnight through the week at location 1 and can now commute to the head office (still 60 odd miles).

The company has outsourced the redundancy process, so HR would have given them a list of workers at risk, but now it is out of their hands. The MD has promised to clarify why I was included in the at risk, but I emailed him with this information last Thursday and reiterated at the formal meeting yesterday when he insisted that he still had to give me the letter, until the situation was resolved.

[ULA]

Re: Notice of risk of redundancy validity

I presume though that even if the company is using an outsourced third party to help them manage the redundancy process the letter given to you came on your company's headed paper?

Whilst they resolve the issue I suggest you still formally go back in writing/email to whomever signed off the letter and copy in the HR department stating the fact that the redundancy process referred to in the letter of (insert date of the letter) is in relation to a site closing down that you have not worked at for 16 months. You believe this is an oversight due to your personnel record not being updated to reflect your transfer to a different site and please can they confirm that you have been erroneously included in the redundancy process.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

Hi,

despite the risk of redundancy letter stating that there would be a 3 week consultation period which has long passed, I am still officially at risk while they develop a flexible working policy that may or may not conflict with my current contractually agreed home working arrangements. Is there any limit to how long they can keep me at risk, what with it being a shitty and stressful place to be? Also can they switch the cause for the risk without starting a new process from fresh? Is this behaviour sufficient for me to claim constructive dismissal if I decide I can not cope with this stress any longer?

If they decide I can not work from home but I refuse to work permanently in the office, is this a reasonable ground for them to terminate my employment? I'm not surplus to requirement

[Viking1985]

Re: Notice of risk of redundancy validity

Hi,

Have you raised a formal grievance?

Giving the employer chance to "make amends" for their failures (while under pressure of an office closure) to keep you informed is good practice.

After that think about Constructive unfair dismissal if you have 2 yrs + service but be aware it isn't the easiest thing to prove.

Viking

[ULA]

Re: Notice of risk of redundancy validity

Firstly did you formally write to the company regarding the fact that you believed you had been incorrectly added to the "at risk pool" because records had not been update to show you not working at the location that is being closed down? If so what was their response.

Secondly redundancy can only occur in the following situations:

1. Your employer stops carrying on their business (this does not include when they transfer it to a new owner);
2. Your employer stops trading from the location where you are employed and moves the business elsewhere; and
3. Your employer’s business no longer needs any employees or as many employees as it needed before (normally due to changes in the processes).

A change in flexi working policy is not covered by one of the categories above and would need to be treated in a different way and would not form part of the current redundancy process.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

Thanks for your responses.

I emailed the MD immediately on receipt of his email announcing the closure of my old office, and my line manager who has since updated the records. The MD's immediate response was to try to organise a meeting with me at the office to be closed, when I repeated that I did not work there and that I would be happy to meet him at head office where I now work his reply was “Your role is certainly continuing, based in [head office]. I’d just like to meet to confirm that the location is agreed in writing, make sure you understand the full picture and have a chance to ask any questions before confirming it all with you.”

At that meeting he insisted on issuing me with the risk of redundancy letter. We did not agree the location in writing. We then talked about my current contractually agreed working arrangements. We have had two subsequent informal meetings/chats about his efforts to get a UK company wide flexible working policy, during which he has refused to confirm that my job is safe.

If redundancy can only occur in the circumstances listed above, what can they do if they refuse to allow me to continue working from home?

[ULA]

Re: Notice of risk of redundancy validity

It will depend on the terms of your contract of employment as a change to not allow you to continue to work at home may already be permitted under the terms and therefore all your employer will need to do is give you reasonable notice from when they will require you to work permanently at the office.

If the change is not permitted by the terms of your contract then the employer will need to seek to vary the contract with your express agreement unless it is subject to a collective agreement with the relevant recognised trade union which is binding on any employee concerned.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

Thanks again.

There is a clause in my contract "The Company reserves the right to make changes to this Contract. You will be told in advance about any changes and, where appropriate, a period of time for consultation will be allowed before a change is finalised", which seems too vague to be enforceable. Attached is the change to my contract that allowed for flexible working.

I would argue that as a) the change was agreed to after the contract it has precedence and b) the letter includes the phrase "this is now a fixed change in your terms of employment" [is there a legal definition of fixed?] and c) the change does not include anything along the lines of "the company retains the right to alter your working location in line with the needs of the business" that my current arrangements are contractually safe.

If I'm correct in thinking I'm on firm territory contractually and I refuse to give my express agreement, what options do the company have?

[ULA]

Re: Notice of risk of redundancy validity

The clause in the contract does provide for them to make changes to the contract having had time for consultation. However the contractual term that an employer may rely on to unilaterally vary a contract must provide unambiguously for that and the provision has to be expressed in clear terms. Whether this is clear and unambiguous enough I am not a lawyer so would not like to say either way.

In terms of the change to work from home 2 days per week this is an agreed variation to your original contract and is the working arrangements currently in operation. However the interpretation of "The trial has been successful and therefore we can confirm that your flexible working pattern is now a fixed change in your terms of employment" could also be viewed as meaning that the working arrangements are no longer a trial and that it will now become your working pattern. This is the only part of your contract that has been varied and everything else will remain in force which includes the term "The Company reserves the right to make changes to this Contract. You will be told in advance about any changes and, where appropriate, a period of time for consultation will be allowed before a change is finalised".

If the company wanted to change your working pattern (although if they want to introduce a flexible working policy I would have thought this might have included working from home) then they need to go through a process of consulting with you and getting your agreement to any change. If you do not agree to the change then the company has a couple of option they may simply decide to impose the change anyway and see how you react or they may give notice to terminate your existing contract and at the same time, offer re-engagement immediately after the existing contract expire on the new terms.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

.. or they may give notice to terminate your existing contract and at the same time, offer re-engagement immediately after the existing contract expire on the new terms.

Is this legal? What if any compensation would be appropriate if I didn't take the new contract? I had assumed I would have a constructive dismissal argument if they forced me to quit by changing my working conditions unilaterally, so just terminating would be unfair dismissal.

PS you say you are not a solicitor, what are you basing your advice on? I don't doubt its sound, but it would be good to have a bit of biography on your profile.

[ULA]

Re: Notice of risk of redundancy validity

Yes it is legal and is know as 'dismissal and re-engagement' or 'fire and re-hire'.

If you do not wish to accept the change you have the option to work normally and can choose whether to:

1. resign and claim constructive dismissal if you feel the change is significant and amounts to a repudiatory breach of your contract
2. remain in employment, but work 'under protest', maintaining non-acceptance of the changes, and sue for breach of contract
3. if the change amounts to the removal of the old contract and its substitution by a new inferior contract, sue for unfair dismissal from the old contract and choose whether or not to remain in employment under the new contract.

My guidance is based on over 25 years of employment law experience dealing with and advising employers and employees in a non solicitor capacity.

[EwanHusarmee]

Re: Notice of risk of redundancy validity

Many thanks. I think I ought to just take a few deep breaths and wait for my employer to make the next move. Hopefully the new policy will allow for me to continue as is.

[ULA]

Re: Notice of risk of redundancy validity

If the company is looking at a flexible working policy then as I previously said I would expect to see things like the ability to work from home, flexible start and end times etc. as part of the policy so you may not have anything to worry about.

I know its hard but at this stage all you can do is wait see what the policy allows for and whether that fits in with your current arrangements. If it does all good if not then that is the time to think about what you want to do about it.