Redundancy Help. Employment Law

[TVR Andy]

Wife is due to be made redundant,and she has been offered the legal minimum redundancy package. But this is where we need some help. The only contract she has is with her original company,this company was taken over by her current employers. She has never been asked to sign a new revised contract, or been issued with any paperwork to vary the original contract. Her signed contract says she is entitled to 5 weeks redundancy + commission at her current salary, for every year of service. This is about 110 weeks worth of money, loads more than the offer she has been made. So the question is does the original contract stand, & is this covered by TUPE?

[john_p]

How was the company taken over?

[dark_helmet]

Some TUPE stuff here

http://www.cipd.co.uk/subjects/emplaw/tupe/tupe.ht...

I should imagine as she has not accepted new terms the old ones stand.

I am starting to read up on this myself.

[TVR Andy]

john_p said:

How was the company taken over?

Company sold off to larger company

[richyb]

Sounds like a worrying situation. What industry is it if you don't mind saying?

[john_p]

TVR Andy said:

john_p said:

How was the company taken over?

Company sold off to larger company

There is little doubt in my mind that her old contract of employment would continue to operate, provided the company didn't do anything sneaky like send letters out suggesting new terms of employment at a later date?

Given the sums presumably involved (that payout is tax free, isn't it?) I'd be off to an employment law specialist ASAP. Good luck!

[TVR Andy]

richyb said:

Sounds like a worrying situation. What industry is it if you don't mind saying?

National estate agency

[Firefoot]

If TUPE applies then all your wifes terms and conditions transfered with her. The company aquiring her would know of these terms and conditions in advance.

If the company has not subsequently issued a new contract, or a letter varying these terms, then they are still effective and she is entitled to the enhanced redundancy provision.

Was she employed by the old company for more than 12 months prior to the takeover? This can affect her rights.

TUPE can be a complicated issue and my advice is for her to speak to her personnel department or manager to make sure they are aware of her entitlement, and if no joy there, then contact ACAS for advice.

[TVR Andy]

john_p said:

TVR Andy said:

john_p said:

How was the company taken over?

Company sold off to larger company

There is little doubt in my mind that her old contract of employment would continue to operate, provided the company didn't do anything sneaky like send letters out suggesting new terms of employment at a later date?

Given the sums presumably involved (that payout is tax free, isn't it?) I'd be off to an employment law specialist ASAP. Good luck!

Unsure about tax, depends on wether it is classed as redundancy or early reirement by the tax office !

[TVR Andy]

Firefoot said:

If TUPE applies then all your wifes terms and conditions transfered with her. The company aquiring her would know of these terms and conditions in advance.

If the company has not subsequently issued a new contract, or a letter varying these terms, then they are still effective and she is entitled to the enhanced redundancy provision.

Was she employed by the old company for more than 12 months prior to the takeover? This can affect her rights.

TUPE can be a complicated issue and my advice is for her to speak to her personnel department or manager to make sure they are aware of her entitlement, and if no joy there, then contact ACAS for advice.

Yes was with old co for about 18 years

[dickymint]

Contract cannot be changed without consultation and agreement. I would suggest putting in a grievance straight away. From memory a new contract does not have to be signed and returned - it is presumed as accepted after a period of time. Maybe (hopefully not) your Union has sole negotiation rights and accepted any changes on your behalf when the company was taken over?

[Firefoot]

Ok, so she needs to speak to her manager or personnel dept asap. It is possible that there has been a genuine mistake, or that the new company are simply trying it on. All she has to do is show them the original contract, state that she is aware of her rights under TUPE and hopefully problem solved. If not, then she needs to respond to the offer in writing stating her entitlement and refusing to accept a statutory redundancy payout.
This effectively kickstarts the grievance process which she would need to go through if the issue was ever to go to tribunal.

Redundancy payments are made tax free up to 30K and are not subject to NIC deductions.

[Digga]

TVR Andy said:

Firefoot said:

If TUPE applies then all your wifes terms and conditions transfered with her. The company aquiring her would know of these terms and conditions in advance.

If the company has not subsequently issued a new contract, or a letter varying these terms, then they are still effective and she is entitled to the enhanced redundancy provision.

Was she employed by the old company for more than 12 months prior to the takeover? This can affect her rights.

TUPE can be a complicated issue and my advice is for her to speak to her personnel department or manager to make sure they are aware of her entitlement, and if no joy there, then contact ACAS for advice.

Yes was with old co for about 18 years

What Firefoot said 100%.

We looked at buying a struggling engineering firm a few years back, as they were a valuable, strategic supplier to us. Sadly, our contract was only 20% of their business and much of the rest of their accounts were loss makers - hence their dire position.

We looked at buying the firm and paring it down, but the redundancy costs combined with the purchase costs were prohibitive (as far as we could see, within the period the receiver gave us to work on the deal) and made it a non starter. Neither vould we let the copmany go bust and then buy it to start trading, with the same customers, from the same premises, without taking on the TUPE liability for any redundanices. In other words, the previous contracts would still have carried over under the TUPE regs.

In the end, we let it go and had to gamble on whether we could get the specific kit and people we needed to start our own operations from other preimses we owned.

[Firefoot]

dickymint said:

From memory a new contract does not have to be signed and returned - it is presumed as accepted after a period of time.

This is correct, once you have worked under a new contract for a substantial period of time (can't find any case law right now that defines what a substatial amount of time is), then you are deemed to have accepted the new terms and conditions - unless you have stated that you are working as requested but under protest.

[TVR Andy]

Firefoot said:

dickymint said:

From memory a new contract does not have to be signed and returned - it is presumed as accepted after a period of time.

This is correct, once you have worked under a new contract for a substantial period of time (can't find any case law right now that defines what a substatial amount of time is), then you are deemed to have accepted the new terms and conditions - unless you have stated that you are working as requested but under protest.

How can you be working under a new contract if no other cotract has been given to you ?

[richyb]

At the last place I worked at we had a change of terms and conditions that amounted to our place changing from one site to a county. Unison advised that by not signing the document but continuing work we were accepting the new terms. I assume this could be the case here as well although with redundancy it might be looked at in more depth.

[Firefoot]

TVR Andy said:

Firefoot said:

dickymint said:

From memory a new contract does not have to be signed and returned - it is presumed as accepted after a period of time.

This is correct, once you have worked under a new contract for a substantial period of time (can't find any case law right now that defines what a substatial amount of time is), then you are deemed to have accepted the new terms and conditions - unless you have stated that you are working as requested but under protest.

How can you be working under a new contract if no other cotract has been given to you ?

This doesn't really apply in your wifes case as she has not been given a new contract, we were just going off on a slight tangent.

[Bree]

Firefoot said:

If TUPE applies then all your wifes terms and conditions transfered with her. The company aquiring her would know of these terms and conditions in advance.

If the company has not subsequently issued a new contract, or a letter varying these terms, then they are still effective and she is entitled to the enhanced redundancy provision.

Was she employed by the old company for more than 12 months prior to the takeover? This can affect her rights.

TUPE can be a complicated issue and my advice is for her to speak to her personnel department or manager to make sure they are aware of her entitlement, and if no joy there, then contact ACAS for advice.

Spot on.

OP - does your OH still have a copy of her contract? If so it could come in handy. Remember that your OH has the right to view the contents of her Personnel file and any other information they hold, they may have documents relating to the TUPE and her contract there.

Edited by Bree on Thursday 25th September 10:33

[TVR Andy]

Bree said:

Firefoot said:

If TUPE applies then all your wifes terms and conditions transfered with her. The company aquiring her would know of these terms and conditions in advance.

If the company has not subsequently issued a new contract, or a letter varying these terms, then they are still effective and she is entitled to the enhanced redundancy provision.

Was she employed by the old company for more than 12 months prior to the takeover? This can affect her rights.

TUPE can be a complicated issue and my advice is for her to speak to her personnel department or manager to make sure they are aware of her entitlement, and if no joy there, then contact ACAS for advice.

Spot on.


OP - does your OH still have a copy of her contract? If so it could come in handy. Remember that your OH has the right to view the contents of her Personnel file and any other information they hold, they may have documents relating to the TUPE and her contract there.

Yes, she has her contract all safe & sound

Edited by Bree on Thursday 25th September 10:33[/footnote]

[footnote]Edited by TVR Andy on Thursday 25th September 12:07

[Dr Bob]

richyb said:

At the last place I worked at we had a change of terms and conditions that amounted to our place changing from one site to a county. Unison advised that by not signing the document but continuing work we were accepting the new terms. I assume this could be the case here as well although with redundancy it might be looked at in more depth.

Pretty certain that you have to know about the changes in order to have accepted them - i.e original contracted hours were 8.30 - 4.30, but have been working 9-5 for the last 6 months... you would be deemed to have accepted the 'new' contract - but I don't see how that would work with something like redundancy conditions - you'd need to have been informed in writing I assume.

Disclaimer: I'm not a lawyer! And I echo the above poster who said that for such a potentially significant sum it'd be well worth taking some proper advice.

CH