Fixed Contract

Ok - based on what you have said here - but with the rider that this is only bare details I have - I agree that TUPE probably does not apply. The only way to be certain would be to have someone with TUPE experience review the contracts, but I don't think this is necessary. Bear in mind that if this is not the correct position (a) you took legal advice so you have a defence and (b) if it were a TUPE both companies are liable and it sounds like going after the other one will be more profitable!

30 miles isn't sufficient distance - an employee turning down an offer of suitable alternative employment wouldn't generally get away with this. Roughly 50 miles / 90 minutes is the braod guide tribunals use. Obviously, it depends on individual circumstances - but it is the employees circumstances and not yours that count. I would say that the needs of the client, because this is a special group, is a much stronger argument, and could certainly form one of the selection criteria.

In your position, my advice would be that you adopt the position that the selection was based both on the contract with the client coming to an end and the fact that the special relationships required in working with this type of person take time to establsih and that replacing one worker with another would set back the work and impact adversely on your ability to deliver. It isn't fool proof as an argument (people leave anyway, so you can't ever guarantee personnel won't change), but it works, and given that you are a small employer, I think that if it were challenged that you would probably win.

The crux of this is whether anyone will challenge it - and the chances are quite good that they will not. Especially not if they have received all their legal payments (notice, redundancy pay, any holidays untaken, expenses) - people tend to miss money and not rights! The staff are likely to accept - they do know the contract has gone and they are not likely to question it much further.

I seriously do think that given the effort you have put in to get this right, and having taken legal advice, then you are in a strong position to mount a defence based on being a small employer. Getting the wrong advice isn't a defence per se, but you did go out of your way to try to garner the resources you needed to get it right - a tribunal would weigh this heavily in your favour and whilst you could still lose a case, it probably wouldn't be a disasterous loss - it would probably be minimal or no award. I realsie that getting to a tribunal isn't your aim - so I have to emphasise that I think it unlikely this will happen. If it does I can talk you through the problems - a small settlement will probably make it go away! So that is your very worst case scenario, and most unlikely.

I would go ahead, making sure that you pay up every penny you owe - maybe take the staff out to dinner as an extra thank you for their hard work and sorry we have to let you go! Good relatiionships and good references are crucial to everyone, employees and employers, so a little extra effort and some time invested in doing whatever you can to help them into new jobs - which I am sure you would do anyway - is likely to leave everyone, if not entirely happy, and least satisfied. And that is the best way to avoid tribunals - few people think about taking an employer they like to tribunal!

Thank you for your advice. In our letter to the employees do we need to say why the selection we made, was made; or do we just say "we got it wrong, thank you, redundancy etc etc etc" Is there a time frame for the redundancy to be paid?

Should we do anything about the solicitor? She hasn't cost us anything, YET, but I do feel quite aggrieved that we paid for wrong advice. In fact an email I received yesterday said:

"If you were continuing in business you could have evoked the fixed term date and given notice without payment."

I am waiting for her to call back today with what she meant by that.

To be honest I just want it all to go away. If I'm being honest I have limited sympathies for the employees as we all knew at the outset the job was only for 3 years. In my heart of hearts I can't help feel that things are weighted against us, a very small, law-abiding, employer just trying to make a living. We have lost half of our business and are struggling on regardless - who will compensate us? It kind of puts you off employing anybody ever again.

p.s. donation made.

I have spoken to my solicitor and she is refunding my fee. I have also written to the two employees re. redundancy; thanks and the all round distress/confusion. We did help them both find jobs with the company who won the tender. So they will be ok.
Thank you again for your help.

To be honest, the fact that you have been upfront with your employees from the start is the reason why I think it very unlikely that any legal action is likely. It is employees who are badly tretaed and/or not informed who are the most likley to go to tribunal.

I would also like to know what that advice means - it is utterly and entirely outside the law and indicates someone with a weak grasp of employment law. On a very basic level I cannot imagine any lawyer who does not know that redundancy payment attaches to any employee who has two or more years service no matter what kind of contract they have. Such ignorance is inexcusable.

I would simply say that you have taken fuirther advice and have realised that what you have been told is incorrect and they will be entitled to some small redundancy payments, which you will advise to them when you have the figures. Business Link do a free on line calculator that will do all this for you (and correctly!). It's only likely to be in the region of two or possibly three weeks pay each (there are age factors, so I can't be precise). The fact that the contract is fixed term and has an end date means that the notice was already in the contract, and provided that you have not gone past the end date of the contract (by even one day - this is where many employers slip up!) then you do not need to give notice again, so that won't cost you anything that wasn't already in the mix. As I said, if there is accrued and untaken holiday you must also pay for this (although you can insist people take it during their notice).

Redundancy pay should be paid when people are redundant - but sometimes employers do pay it late (not too late though!) or in installments. But the latter would be more likely to run into problems if the staff object. "It will be paid on the payroll run" is a common excuse! provided it is of course.

Funnily enough I pressed her on 'that advice' too and she was as insistent on something about fixed terms and us continuing business, as I was on repeating "but they had been with us over two years". In the end she conceded that redundancy law takes precedence over fixed contract law (although I am now under the impression that there is no such thing as fixed contract law for employees over 2 years!).

I perfectly understand why employees need protection from *unscrupulous* employers but it sure is a minefield.

Thank goodness for this site (which I will 'share') and there have been lesson learnt by all. Payment will be made asap.

I posted my last post at the same time as this and didn't see it. So you can now breathe a sigh of relief. If they are both in work then there is no way that given all the circumstances a tribunal would, at worst, do more than slap your wrists - an award would be minimal, and since they have jobs they probably won't even think twice about it anyway.

I agree with you that employment can be a minefiled, but at the same time, a bit of resreach and a small amount of common sense gets most people through it without any problems. You have been particularly unfortunate in trusting advice that should have been dependable and wasn't - you could have done a better job on your own with an internet connestion.

I would advise you in the future to think twice about fixed term contracts - a "permanant" contract (there isn't such a thing in law so that is the reason for the quotation marks) is simpler all around. There is nothing to stop you doing what many employers do - the third sector are particularly good at this - and saying that current funding is available until XXX date. That way you are being up front about the money coming in to pay for the job, but otherwise you just follow the law to the letter - nothing stops you making redundancies! TBH the law was changed because of bad employers who issued fixed term contracts routinely to avoid legal responsibilities like fair dismissals and redundancy payments - people were literally sacking workers at the end of ten years because they had a fixed term contract! It was, and I think quite rightly, considered that they should have the same rights and protections as anyone else who has worked for their employer for a long time. Employment laws are usually created because of bad employers - not good ones. But once they are in place, everyone has them, not just the bad employers. We wouldn't need working time directives if some employers didn't think that working 90 hours a week was ok !

I am sure that this has been a learning curve for you, and it won't be you that gets caught up again! The information is out there and freely available - make sure that you use it and you won't go too far wrong.

And thank you for the donation - I know it will be put to excellent use, and no doubt better use than your solicitors bill would have been put to!