Redundancy - Notice Period, Consultation, Selection Criteria and Compromise Agreement

Hi there

I'm new to this forum but found some of the threads very useful however, I hope one of the helpful HR consultants in this forum can shed some light or advice on my case, here are the facts and queries :

FACTS/time line :

• Limited company with small number of staff (under 20)
• Employed full time for over 16 months continously up until today (under 2 years so no statutory redundancy pay or even enhance redundancy pay unfortunately
• 3 months notice period in my contract
• Initial meeting with my boss early Oct 2008 about my job being at risk and looking at possible options available within the company. Also been told that the entire internal department will be outsourced (currnetly there's only 2 of us, myself and my assistant) and both of us will be finishing up by Christmas.
• First letter issued towards the end of Oct 2008 outlining that my position is at risk and to explore different/alternative options and be formally consulted the day after.
• Second letter issued the day right after the invitation to be formally consulted (2 days after 1st letter issued) outlining further details of my redundancy where my 3 months notice period is backe dated to the beginning of the month of Oct 2008 when I first had the initial meeting (verbal) but only had to work up to Christmas with the rest of the notice period (about 2-3 weeks) paid out tax free along with my holiday pay tax free if I enter into a compromise agreement. Also stating yet again the entire department will be outsourced as the reason of my redundancy and I should inform my assistant about it next week, ie. leaving the same time as myself by Christmas where the outsourcer will take over the function/our duties in the new year (Jan 2009).
• Since then, I tried to negotiate an earlier leaving date prior to Christmas so I can get a larger portion of my notice paid out tax free but on the condition that the hand over with the outsourced company was completed adequately. This was completed by the end of November 2008 but the employer/my boss via legal changed their minds and wanted me to work my notice period all the way thru which I was unhappy about.
• After a few weeks of working out my notice period, I finally received my detailed redundancy terms yesterday, ie. detailed payment terms, dates, etc.. where they have agreed to pay me as per normal until the end of the week and dont have to return to work in the new year but will be paid up to the end of the year tax free from next week BUT my holiday pay will be TAXED as per normal and only be paid out in the new year. Furthermore, there will not be any compromise agremeent issued since I do not have shares in the company. Also found out that my assistant will be staying on as per normal thru to the new year and up to Feb 2009 at the very least! Was also told to hand over my keys, passwords, laptop, phone, other benefits will cease when I leave this week!
• Further info, my redudancy pay with the tax free portion outlined above and holiday pay will not be over the £30k threshold. My boss also insist that I accepted my notice period to start at the beginning of Oct08 when I was first informed about my redundancy which I clearly did not ! However, I do not want to rock the boat and wish to maintain good working relationships with my boss as a verbal reference to future job applications which he has agreed to provide and have received a written reference as well which is nice but a verbal reference is required by most recruitment agencies these days so I do not wish to upset him in anyway but wish to be treated fairly at the same time.

QUERIES on the above
(1) Notice period and consultation process
In my view I've not been consulted properly based on the facts above and it's not right for the employer to back date my notice period when I was initially informed verbally (early Oct08) about my redundancy. So when did the consultation conclude ? was it when the 2nd letter was issued at the end of Oct08 which briefly outlined that I was to be made redundant with rough time lines or yesterday with the full/final details of my final pay ? or is it still ongoing as I'm not satisfied with it especially with their selection criteria (see (2) below), notice period given, ie. back dating the notice period before being properly consulted to reach an agreement or going back on the original terms where my holiday pay will be paid out tax free via a compromise agreement ? FYI, my holiday pay is a very significant portion (over a months pay) as I've not taken any for the entire year !

(2) Selection criteria
I'm I being singled out and treated unfairly when my assistant is now staying on with the company and the employer going back on their original plan/reason for my redundancy/dismissal ? can they make my position redundant due to a cost saving exercise (my salary is higher) and not LIFO basis as I was working with the company prior to my assistant joining since I hired her earlier on this year. I also have more qualification and experience than her and can perform her duties as well. I also offered to work part time but this was rejected just to ride thru the storm especially over Christmas up till the end of Jan 2009 but was turned down.

(3) Redundancy pay and compromise agreement
Can they not issue a compromise agreement as outlined in the 2nd letter but still pay the final week tax free (PILON) but my holiday pay is not tax free ? Will the compromise agreement change the fact that the holiday pay can be paid out tax free ? or an ex-gratia payment ? They have been advised by their legal department that holiday pay cannot be tax free as it attracts PAYE & NI - surely my final week's pay is the same but they can treat it as a tax free payment (PILON) ? Is there any way of treating my holiday pay as tax free as mentioned above it's very significant and do not have any redundancy payment so have to rely on this to take me thru the first 1-2 months in the new year looking for a new job if there's any suitable roles available.

Shall I raise all the 3 points above with the in-house legal person/my boss after I leave this week or raise my greivance/appeal ASAP, ie. tomorrow/Friday ?

As mentioned earlier above, I have not seeked any professional legal advice on the matter (only ACAS and most require a compromise agreement) as I do not want this to be messy and I wish to maintain good relations with my boss but at the same time I do not want to be treated unfairly and the employer's taking advantage of the situation. I'm also not sure if the matter should be taken further via the employment tribunal in the new year if it's in my favour (potential 90 days payout) as it's hard enough looking for a new job in the global economy downturn and job cuts/unemployment at the all time high.

I hope I've provided enough info above for any advice provided will be greatly appreciated. Any further queries/points, please let me know as I will be watching this thread closely and hopefully come to a reasonable conclusion very soon.

Many thanks in advance!

Am surprised no reply yet but i guess the HR consultants must be swamped with work or on holiday due to the festive season coming up very shortly!

~Just a quick update that I've e-mailed and written a letter outlining the 3 queries/points above to the Legal dept (cc my boss) and hopefully will get some answers soon as will be leaving the company v v soon

Also called up ACAS and they advised that it's best to resolved prior to my departure if and when possible and in summary, their advise as follows :

• notice to be served at the earliest when the 2nd letter was issued at the end of Oct 2008 outlining my redundancy and cannot be back dated to the beginning of Oct when I was first informed as this constitutes consultation.
  
• the employer should also provide full details on why I was selected with a detailed method of selection between myself and my assistant and this cannot be based solely on pay or cost cutting but on skills/experience, conduct, attendance, etc.. and if I can perform my assistant's job, I should be the one to stay on. it's also interesting that they brought up a point that I should be offered a role with the outsourced company as this is not a valid reason for my redundancy ?
  
• with regards to my holiday pay, it can be paid out tax free if there's a compromise agreement entered up to the max of £30k tax free threshold as enhanced redundancy payment. This can also be paid when I leave and do not have to wait until the end of my notice.

In summary, I'm owed a few weeks pay for the incorrect notice given and also the tax free portion of my holiday pay so hopefully there will be a reasonable conclusion and agreement to this soon.

Again, any feedback / thoughts is greatly appreciated as time's running short

Hi

Thank you for returning to the forum. I am sorry for the delay. We have been inundated and we have been on the forum as much as we can.

It sounds like ACAS have given you sound advice. As they say, it is always best to resolve these matters before employment ends, however they have probably explained that the standard grievance procedure will apply even after the you have left the organisation.

I do hope you resolve the issues with your employer amicably and receive the pay that you are owed.

Please by all means return to the forum for further advice or let us know how you get on with this.

Thanks for your reply but I've not received a reply from my letter outlined above to date - is there a time limit for the employers to respond ?

Also my holiday pay was not paid out as promised earlier this month and it's over 2 weeks late no response from the employee/outsourcer to date but I really hope it will be resolved soon too.

been actively looking for work and been to a few interviews with no offers as it's tough out there especially with the current economic downturn with more job cuts and recruitment freezes at various companies.

thanks for a few messages of support and will keep you posted on any further progress and any advice appreciated too. Thanks again

I've finally received a cheque for my holiday pay (net not gross) so it was taxed in full contrary to what was agreed per the original letter back at the end of Oct2008 and they also not responded to my letter provided to them back in Dec2008 before i left regarding my notice period, consultation process, selection criteria, redundancy pay/compromise agreement
I've also just found out in my contract of employment that 3 months "written notice" is required by either party to terminate the contract so I'm owed 2 weeks notice when the letter was provided by the employers and not when I was verbally consulated
I really hope there will be an agreement reached with the employer but can anyone advise how to proceed further if there's no response from them in the next few weeks ?

Hi again

just another quick update as im sure all the advisors here have been very busy with whats happenning out there with more job cuts/losses/redundancies.

I've still not heard back from my employers regarding my letter back at Dec 2008 and it's coming up to 3 months with no reply to date but have been promised a reply soon each week i've been chasing with no avail.

Is there a time limit on this ? I also understand it's 3 months after your last day of employment to lodge a claim at the Employment Tribunal - can someone pl confirm and also if you need a solicitor/lawyer should I go down this route or can you represent yourself ? Can anyone recommened any good lawyers based in central London ?

I still believe I'm entitled to at least 2 weeks pay due to my contractual notice per my employment contract where "written" notice have to be given and not back dating their notice. I also believe I'm unfairly and wrongfully dismissed but would appreciate any feedback from the experts based on the facts above on how much you can claim on this and to prove your case.

I've also been to numerous interviews and sent out many applications and constantly working with a few agencies but it's a very difficult market out there especially with senior positions and more candidates than jobs at the moment.

Nonetheless, I look forward to any feedback or suggestions soon.

wow over 2,500 views and probably one of the most viewed thread on this forum and still no reply from any advisors.

Well I've downloaded the ET1 form from the Employment Tribunal website and have submitted it as there has been no reply from my employers with regards to my letter and its taking way to long to get back to me with numerous excuses where the correspondence are with their lawyers and is under review but will provide a fair view on the matter in due course. Well the in due course has been for weeks and months so better to submit the forms to avoid any further delays.

There's also a change in the rules from 6th April 2009 onwards if anyone's interested check out the employment tribunal website at http://www.employmenttribunals.gov.uk

Does anyone know any good employment lawyers/solicitors in London at reasonable rates or willing to work my case on a no win, no fee basis ? Please get in touch or reply back to this thread.

Thanks again and further updates will be posted soon when I have any results but this could be a lengthy process in order to reach a reasonable and fair conclusion.

well i've finally received a reply from my employers' solicotors with the ET3 form completed via the Employment Tribunals and also a letter from ACAS to resolve the matter prior to the hearing date if a reasonable conclusion can be reached.

my question now is if i should be representing myself as I'm still currently out of work and cannot afford a solicitor unless there's a no win no fee arrangement - can anyone recommend any for me ? or is there a pro bono/ free lawyer provided ? any advice will be great.

wow over 3.4k views on this thread so it must be good reading for some and hopefully there will be some justice in our system too. I will keep you posted on any further news going forward. Thanks again for reading and any tips/advice appreaciated as always, even if you are in the same boat....

It's unfortunate that the advisors don't have time to respond to everything, I know they do try. Experiences that are shared, such as yours, are an invaluable resource for the forum users. Many thanks for the updates.

Thanks for your reply and over 4.3K views with no reply from any advisors

The latest update is that I've a pre-hearing review at the Employment Tribunal at Watford on Tues 14th July 2009 with 2 main matters to be clarified as follows :

1. What was the effective date of termination and

2. Whether the claim have been brought within time

I may submit written representations for consideration at the hearing and also prepare a joint bundle of documents containing all documents/evidence to repy upon at the Pre-Hearing review.

So my question to the experts/advisors out there is that my effective date of termination was earlier this year as it was when I was paid up till but not before Christmas when I left the company and did not return so 3 months from my last day should be early April which was within the deadline as I submitted my claim at the end of March. Can someone please clarify what exactly is the definition of effective date of termination, is it the last day of your employment, ie. when you leave the company or was it the last day up until you are paid till ?

Also can i represent myself at the pre-hearing or do I need a lawyer as I cannot afford one at the moment since Im still unemployed as its a very tough market out there with so many candidates for very few senior management positions.

Nonetheless, I look to any advice / suggestions / support or anyone in the similar situation, please feel free to reply. Thanks again for your time and I will have further updates in due course. Have a great weekend !