Continuation of service
Discussion
Hi all,
I'm a regular PH forum user, but I want to remain anonymous for reasons that will become apparent.
I'm currently an employee of a company that is about to go into voluntarily insolvency due to a bad debt, that cannot be overcome without trading insolvently.
The bad debt was pretty much spread out around the companies suppliers, so they will be hardest hit. It's a really s
tty situation to be in, but I guess that's business and unfortunately it happens every day (trying not to sound too harsh, honestly!).
The company is being 'phoenixed', as it's considered viable without the debt. The whole team are all gutted and we won't be paid this month, which makes things pretty difficult, but we are willing to move forward and operate under a new company, delivering to the old companies clients whilst continuing to try and develop new business.
From a personal point of view I should be able to claim statutory redundancy (some won't) - there won't be any funds available from the company - as I've been an employee for 8 years. This will cover the wages I will lose in March, which, although a little bit inconvenient, is a good situation to be in, especially as it appears I have a job to move into.
My only problem, and questions for any experts out there, is that could the move forward into another company, set up and run by the same owner/MD be seen as continuation of service? Would this then be covered by TUPE law and therefore negate any statutory redundancy payment? Does anyone know what the regs are to avoid this, or how long/if a break in employment is needed - I'm on the look out for myself and a few other guys here who are in the same position, we can afford to self fund until any payment is dueh, but, like most people, losing wages will make life very difficult.
Thanks for any help, it's much appreciated and hopefully I can put a few minds at rest, or at least help a few guys plan round a shortfall in cash.
Redundant
I'm a regular PH forum user, but I want to remain anonymous for reasons that will become apparent.
I'm currently an employee of a company that is about to go into voluntarily insolvency due to a bad debt, that cannot be overcome without trading insolvently.
The bad debt was pretty much spread out around the companies suppliers, so they will be hardest hit. It's a really s
tty situation to be in, but I guess that's business and unfortunately it happens every day (trying not to sound too harsh, honestly!). The company is being 'phoenixed', as it's considered viable without the debt. The whole team are all gutted and we won't be paid this month, which makes things pretty difficult, but we are willing to move forward and operate under a new company, delivering to the old companies clients whilst continuing to try and develop new business.
From a personal point of view I should be able to claim statutory redundancy (some won't) - there won't be any funds available from the company - as I've been an employee for 8 years. This will cover the wages I will lose in March, which, although a little bit inconvenient, is a good situation to be in, especially as it appears I have a job to move into.
My only problem, and questions for any experts out there, is that could the move forward into another company, set up and run by the same owner/MD be seen as continuation of service? Would this then be covered by TUPE law and therefore negate any statutory redundancy payment? Does anyone know what the regs are to avoid this, or how long/if a break in employment is needed - I'm on the look out for myself and a few other guys here who are in the same position, we can afford to self fund until any payment is dueh, but, like most people, losing wages will make life very difficult.
Thanks for any help, it's much appreciated and hopefully I can put a few minds at rest, or at least help a few guys plan round a shortfall in cash.
Redundant
Is what you are asking basically, how can I con some statutory redundancy money out of the gubbermint whilst also accepting the offer to work for the new company that is being formed via the phoenix exercise?
If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breath...
If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breath...
fergywales said:
Is what you are asking basically, how can I con some statutory redundancy money out of the gubbermint whilst also accepting the offer to work for the new company that is being formed via the phoenix exercise?
If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breath...
hmm, I'm not sure why you think i should just lose a months salary and be happy about it.If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breath...
New work isn't promised or guaranteed, it's a new venture that has been talked about and I've been invited to join it. There's no guarantee it will work, or I will get paid next month or ongoing, so therefore I need the statutory redundancy to be able to support my family.
I'm happy that you have managed to be in a position where you don't need a salary, or pay a mortgage, well done.
I don't intend to claim any benefits from the state other than the statutory, I will just need the redundancy to carry me and my family through the next couple of months. Sorry if that's offensive.
Edited to add - I haven't agreed to forgo my salary, it's a forced issue, the company is closing. I have no choice in this matter, I'm being made redundant.
Edited by Redundant on Tuesday 29th March 12:49
Redundant said:
fergywales said:
Is what you are asking basically, how can I con some statutory redundancy money out of the gubbermint whilst also accepting the offer to work for the new company that is being formed via the phoenix exercise?
If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breathe...
hmm, I'm not sure why you think i should just lose a months salary and be happy about it.If it is, have the decency to delete your post and hang your head in shame. Boo hoo you have agreed to forgo your March salary, more fool you, why do you think you should receive a statutory payment and benefit from almost uninterrupted employment?
People like you are what is wrong with this country.
And breathe...
New work isn't promised or guaranteed, it's a new venture that has been talked about and I've been invited to join it. There's no guarantee it will work, or I will get paid next month or ongoing, so therefore I need the statutory redundancy to be able to support my family.
I'm happy that you have managed to be in a position where you don't need a salary, or pay a mortgage, well done.
I don't intend to claim any benefits from the state other than the statutory, I will just need the redundancy to carry me and my family through the next couple of months. Sorry if that's offensive.
You specifically asked how long you would need to be seen to be between employments to satisfy the condition that continuation of service did not apply. That means that you were seeking advice to gain a statutory payment you are not due, which in my book makes you as bad as the dole queue fodder that spend their time working on the black market. Judgemental? Yes, but by abiding by the book of only receiving or looking to receive what I am due, I will give my self the right to judge.
Got a mortgage and a family to support myself, does not mean that when the chips are down I will start breaking the law (which, by entering a false claim, you will be).
ETA: If you have not voluntarily passed up your March salary, then you are a secured creditor and will be settled along with fellow employees by the administrators. How do you classify yourself as being 'redundant'? You cannot make that distinction.
Edited by fergywales on Tuesday 29th March 12:56
This http://coopermatthews.com/phoenixing.html suggests that TUPE would apply but isn't clear on redundancy payments (says they'll be minimised, but don't know if that's because the Government will be paying them).
I guess the critical thing is it depends on the precise way the process is carried out and you probably won't know those kind of details.
I guess the critical thing is it depends on the precise way the process is carried out and you probably won't know those kind of details.
fergywales said:
Get off your high horse!
You specifically asked how long you would need to be seen to be between employments to satisfy the condition that continuation of service did not apply. That means that you were seeking advice to gain a statutory payment you are not due, which in my book makes you as bad as the dole queue fodder that spend their time working on the black market. Judgemental? Yes, but by abiding by the book of only receiving or looking to receive what I am due, I will give my self the right to judge.
Got a mortgage and a family to support myself, does not mean that when the chips are down I will start breaking the law (which, by entering a false claim, you will be).
that's not whathe's suggesting, and you are either being deliberately obtuse of downright offensive. You specifically asked how long you would need to be seen to be between employments to satisfy the condition that continuation of service did not apply. That means that you were seeking advice to gain a statutory payment you are not due, which in my book makes you as bad as the dole queue fodder that spend their time working on the black market. Judgemental? Yes, but by abiding by the book of only receiving or looking to receive what I am due, I will give my self the right to judge.
Got a mortgage and a family to support myself, does not mean that when the chips are down I will start breaking the law (which, by entering a false claim, you will be).
The government scheme was setup to help people who don't get paid when their company fails. please point us in the direction of any legislation which hints he will be posting a "false claim"? (oh and before you get on your high horse, if you aren't prepared to break the law to save your family when they need it, then i'm damned pleased you're no relation of mine!)
OP- not sure if TUPE covers what you are looking at- if your company folds and is immediately taken over by a new entity then you should still be able to claim back unpaid wages from the government scheme. TUPE covers the rights towards you from the new employers point of view!
pugwash4x4 said:
that's not whathe's suggesting, and you are either being deliberately obtuse of downright offensive.
The government scheme was setup to help people who don't get paid when their company fails. please point us in the direction of any legislation which hints he will be posting a "false claim"? (oh and before you get on your high horse, if you aren't prepared to break the law to save your family when they need it, then i'm damned pleased you're no relation of mine!)
OP- not sure if TUPE covers what you are looking at- if your company folds and is immediately taken over by a new entity then you should still be able to claim back unpaid wages from the government scheme. TUPE covers the rights towards you from the new employers point of view!
The company is not failing. By the OPs own admission, he knows that the directors are planning to phoenix it. By his knowing this, and accepting or delaying continued employment to receive a benefit, is to commit an act of fraud.The government scheme was setup to help people who don't get paid when their company fails. please point us in the direction of any legislation which hints he will be posting a "false claim"? (oh and before you get on your high horse, if you aren't prepared to break the law to save your family when they need it, then i'm damned pleased you're no relation of mine!)
OP- not sure if TUPE covers what you are looking at- if your company folds and is immediately taken over by a new entity then you should still be able to claim back unpaid wages from the government scheme. TUPE covers the rights towards you from the new employers point of view!
If TUPE covers him, continuous service stands, no redundancy. End of really.
This (recent) thread suggests the OP will get redundancy pay (eventually) from the Government: http://forums.pepipoo.com/lofiversion/index.php/t5...
He's not going to be paid for a period (unike the guy in the linked thread, who didn't seem to have a break in pay at all, yet still got around £6K).
I don't agree with our Welsh friend at all - you've paid your dues, you've had a period without pay and uncertaintly over what's going on. If you can get something out of it then good luck to you.
He's not going to be paid for a period (unike the guy in the linked thread, who didn't seem to have a break in pay at all, yet still got around £6K).
I don't agree with our Welsh friend at all - you've paid your dues, you've had a period without pay and uncertaintly over what's going on. If you can get something out of it then good luck to you.
Edited by Deva Link on Tuesday 29th March 13:12
pugwash4x4 said:
fergywales said:
Get off your high horse!
You specifically asked how long you would need to be seen to be between employments to satisfy the condition that continuation of service did not apply. That means that you were seeking advice to gain a statutory payment you are not due, which in my book makes you as bad as the dole queue fodder that spend their time working on the black market. Judgemental? Yes, but by abiding by the book of only receiving or looking to receive what I am due, I will give my self the right to judge.
Got a mortgage and a family to support myself, does not mean that when the chips are down I will start breaking the law (which, by entering a false claim, you will be).
that's not whathe's suggesting, and you are either being deliberately obtuse of downright offensive. You specifically asked how long you would need to be seen to be between employments to satisfy the condition that continuation of service did not apply. That means that you were seeking advice to gain a statutory payment you are not due, which in my book makes you as bad as the dole queue fodder that spend their time working on the black market. Judgemental? Yes, but by abiding by the book of only receiving or looking to receive what I am due, I will give my self the right to judge.
Got a mortgage and a family to support myself, does not mean that when the chips are down I will start breaking the law (which, by entering a false claim, you will be).
The government scheme was setup to help people who don't get paid when their company fails. please point us in the direction of any legislation which hints he will be posting a "false claim"? (oh and before you get on your high horse, if you aren't prepared to break the law to save your family when they need it, then i'm damned pleased you're no relation of mine!)
OP- not sure if TUPE covers what you are looking at- if your company folds and is immediately taken over by a new entity then you should still be able to claim back unpaid wages from the government scheme. TUPE covers the rights towards you from the new employers point of view!
I'm not trying to submit a false claim or break the law, in fact 100% trying to avoid it. I'm also trying to protect my family and also help some others here who also have families - and I guess what I want to know is whether I'm ok going into a new position immediately, with the same team, or whether I might need to consider contracting for a month or so.
I'd rather go into a full time position so I can continue to pay PAYE, etc (continuing to contribute to the state, Fergy - if I was contracting I'd be self employed and I'd be advised to offset any costs I could against tax, wouldn't I
), but I don't want to jump in if it negates any chance of covering my lost wage.Just found this on t'internet, but not sure how it sits with my position:
What provisions apply to insolvency proceedings?
New provisions apply where the transfer is subject to 'insolvency proceedings'. In insolvency proceedings without a view to liquidation of the assets, certain debts to the employees will not transfer.
These debts include:
statutory redundancy pay
arrears of pay
payment in lieu of notice
holiday pay
basic award of compensation for unfair dismissal.
There is greater scope to vary terms and conditions when dealing with insolvency proceedings. The transferor or transferee (or an insolvency practitioner) and appropriate representatives of transferring employees may agree changes to terms and conditions (even where there are no ETO reasons) if the purpose of the change is to ensure the survival of the undertaking and the preservation of jobs.
In insolvency proceedings with a view to liquidation of the assets, then no liabilities at all transfer, and the special rules on dismissal do not apply.
Now, in my case, the company I work for will close completely, there will be no sale of business. One business will close, another will open with a view to employing the current team.
Using the above info, does this put me in a position where I can or cannot claim? Need someone to make it a bit clearer for me please?
Redundant said:
Using the above info, does this put me in a position where I can or cannot claim? Need someone to make it a bit clearer for me please?
You can "claim" for anything - whether you'll be successful or not is a different matter.The thread I linked to above talks about the liquidators submitting RP1 (redundancy payment) forms to the Insolvency service. I suppose they do this if the former company cannot meet their statutory redundancy obligations.
You'd be better discussing this with ACAS or perhaps the Insolvency Service, especially if you may face hardship if you don't get paid.
Deva Link said:
You can "claim" for anything - whether you'll be successful or not is a different matter.
The thread I linked to above talks about the liquidators submitting RP1 (redundancy payment) forms to the Insolvency service. I suppose they do this if the former company cannot meet their statutory redundancy obligations.
You'd be better discussing this with ACAS or perhaps the Insolvency Service, especially if you may face hardship if you don't get paid.
After reading that thread I'm sure I'm in exactly the same position. I guess the same applies. I believe it's working in the same way too - the employees were informed in the October, company closed a week or two later, phoenixed and the OP continued his employment and claimed redundancy. Difference is that he didn't lose any wages, just came out several thousand pounds better off.The thread I linked to above talks about the liquidators submitting RP1 (redundancy payment) forms to the Insolvency service. I suppose they do this if the former company cannot meet their statutory redundancy obligations.
You'd be better discussing this with ACAS or perhaps the Insolvency Service, especially if you may face hardship if you don't get paid.
I'm not trying to make a quick buck, just trying to cover my wage loss, without it things will be difficult. I've been in employment since I was 16, so have paid my dues tax and NI-wise (I'm 37), if I'm entitled to a payment I will gladly take it to ensure I can pay the bills.
fergywales said:
The company is not failing. By the OPs own admission, he knows that the directors are planning to phoenix it. By his knowing this, and accepting or delaying continued employment to receive a benefit, is to commit an act of fraud.
If TUPE covers him, continuous service stands, no redundancy. End of really.
WTF are you talking about? he bears no responsibility towards the company as he's not a director- he can continue to work there for as long as he has a job- Or are you suggesting that as soon as you have an inlking that your copmnay may do a Pheonix then you should quit? If TUPE covers him, continuous service stands, no redundancy. End of really.
In fact just generally, do you have any clue about this whatsoever? Are you CIPD qualified, perhaps a qualified accountant, or have you had sgnificant experience of running your business, or perhaps recovering failed businesses? (before you ask, i'm a qualified accountant and have run my own manufacturing and service businesses for 10 of the last 14 years).
Redundant said:
I'm not trying to make a quick buck, just trying to cover my wage loss, without it things will be difficult.
I think your biggest problem is going to be getting money quickly if you need it. The post I referred to seems to be talking about a fairly extended timescale and if that's dependant on the Insolvency Service then be aware that, thanks to Government cuts, they're in the process of losing 25% of the staff - it's my wife's last day there tomorrow - so that's not going to help.Gassing Station | Jobs & Employment Matters | Top of Page | What's New | My Stuff