Hi, new here, thank god I found you!

[BurblingV8]

Please good people can you give me a bit of advice?

I am in a strange situation at my work and before trying law or anything else I need a pointer or two.

I am a Civil Engineer 53yo, I am at present the Principal Engineer in a large [£1bn+ pa] I have worked for the co. for 4+years.

The company was taken over a short while ago and no place for a Principal Engineer was found.

I have bounced around doing bits and bobs (all very useful) but quite bitty.

NowI have asked for a proper role and to be fair they have given me a list of vacancies within the company but none have a role suitable for my grade and involve a pay cut!

I met HR and they say if I don't take a job then I should take redundancy and that means 4 weeks pay and off you go!

Is this right?

My old contract was returned to the new company with their reoplacement contract which I did not sign as I had a few queries on the new one.

I have been sent home to consider my position (which feels odd) it all feels bloody strange to me but I have never been here before so it might be just the way it is.

I have an exemplary history both with the firm and throughout my employemnt history, never disciplined or been any cause for concern in any area.

I don't want the law to become the way of things and would rather have a few pointers should I decide to go for redundancy.

I am completely green on this sort of thing.

Please give me a couple of nods in the right direction or even (if you can) some sound advice.

I appreciate you will be busy (as I used to be) so will read all you have to say avidly.

Thanks for any help.

[vonnie32]

Sorry I don't know much about this area but have you contact ACAS they have a free, confidential helpline, it might be worth a try?

Best wishes

Vonnie

[Sidewinder]

Difficult to give pointers without going into Law as there are very clear legal hoops through which employers have to jump before they can even tell you that you are to become redundant.

When the new employer took over, were you and your colleagues consulted or was the matter of TUPE (Transfer of Undertakings and Protection of Employment) discussed? Did you ever receive an acknowledgement of the queries raised over the new contract? Was the new contract essentially for the same terms (title, salary etc) as the old contract Were you ever consulted over redundancy or warned that your role was under threat?

I can't understand why you were sent home - that seems very strange to me too. The fact is that your employment terms should have been transferred to the new employer under exactly the same terms as for the old company. The new employer cannot simply make you redundant unless they can demonstrate that there are Economical, Technical or Organisational (ETO) reasons for doing so. If they haven't followed procedure (much of which can be checked HERE) then you may have a case to take further.

Providing that they can demonstrate that your role is not required due to ETO reasons, then redundancy must be offered as an alternative. In order to make you redundant, they must engage in a formal consultation process, firstly advising that your position is under threat, outlining the reasons why and advising of further meetings at which you should be given the opportunity to ask questions and explore alternatives to redundancy (other vacancies, ways in which your position could be maintained etc). You would then be entitled to consideration of any proposals and an answer to any questions before (and in the absence of acceptable alternatives) you may be formally advised that you are to be made redundant. You must also be given written details of what has been discussed at each stage. If you are to be made redundant you must be given the correct period of notice starting with the date of the the final consultation - this must be at least what your contract states, but cannot be less than the law allows (one week for every completed years service up to a maximum of 12 weeks). You may be required to work for this time, or put on 'gardening leave' whereby you will still be paid your normal salary but cannot work elsewhere.

Sadly unless you work for a particularly generous employer, offering a greater than statutory redundancy payments, then the amount that you are paid as severance can be capped at a week and a half's salary for every completed years service (normally a week's, but due to your age this is increased by 50%). A week's salary though is capped at a maximum of £330 for the purposes of redundancy. In addition to this you are entitled to be paid for any accrued but untaken holiday for the current year, and depending on your contract, any bonuses due. More details of the redundancy process can be found HERE.

I hope that you are able to gain some knowledge which will help you through this one way or the other. I know what you are going through and how confusing it all is. The advice given by Vonnie is sound. ACAS are extremely helpful and are instrumental in drawing up the 'rules'. Their WEBSITE can be a good starting point, or phone them on 08457 474747.

[BurblingV8]

Thankou both very much indeed!

I will take your advice to the letter and I can only say that just having another voice is a great comfort and I especially thank you for that.

I hope tat I can settle this matter quickly and quietly, I have had an offer of a job today as it happens, it is strange how reading something positive can make good things happen.

Great site wih good people, more power to you all!

[BurblingV8]

SW, in answer to your questions.

None of us in the section I was leader of was consulted until the takeover happened and I was not on any "Management Structure" details.

My immediate boss left the company as his name wasn't on there either!

I had never heard of TUPE until I read your post.

I was sent home and told to wait for 're-assignment' as the project I was running was complete.

I met HR on Friday and they are asking me to go now as in just received a 'phone call asking if I am OK about leaving this week!

I have an offer of a job but it is far from settled!

I feel like I am being frog-marched out the door and I admit to feeling slightly annoyed at this, perhaps I'm just feeling a bit off due to the whole thing.

[sharkie]

BurblingV8 (clearly an engine man)

As SW says they have to give you the correct consultation period following discussion, if this is done correctly, unfortunately they can pretty much do what they want, provided you have been correctly informed.

If you have no service issues, I don't understand why you have been sent home (or gardening leave).

Was there any mention of changes / redundancies during the consultations / meetings prior to the takeover.

Regardless of whether you have another position open to you (do not let them know) they still have to act correctly, if it is redundancy, then obviously time would have to be allowed for you obtain new employment (interviews etc).

The problem in this situation is the shear shock of it happening means that people accept packages offered that are below their entitlement, do not let them push you, and do not sign anything on the spot unless you are clearly happy with it.

If they wish you to go early they have to pay, maybe even via a compromise agreement, this should also cover the cost of a solicitor to check any agreement offered.

These situations can act in your favour occasionally, so stay positive, when a similar thing happened to me, I took them for as much as possible then went to their rivals, stole the best of both their business and staff.


Keep posting

[BurblingV8]

OK thanks guys... after all the advice... I' thinking of sending a letter to them asking for the following:-

Payment of salary for this month.
Payment of salary for a months notice.
Payment of the yearly paid bonus due this or next month. (one months salary)
Payment of holiday entitlement.
Payment of the 6x£330 for redundancy itself.
Payment by last day of this month 30/06/2008.

Is this asking too much or is it (as I think) just about right?

PS have secured employment with a better package to start in Mid-July.

Want to send this offer today by e-mail and hard-copy... if you see something I've missed please tell me.

Thanks.

[Sidewinder]

Congratulations on getting the new job!

Have your employers not already outlined what your redundancy package might be? If not then I would ask them in the first instance - their terms might be more generous than the statutory £330 a week - it would be a shame if you claim this from them and they were going to give you say, £10,000 to go quietly.

Other than that, the list of what you want to be paid is fine. Bonuses should already have accrued and have been budgeted for, 4 weeks notice (or whatever is in your contract if greater) is a right, as are holiday and salary paid to date.

Not entirely certain that you would get it all at the end of the month though as I seem to remember that the redundancy cannot be paid until the day that you actually become redundant, so 4 weeks after you are given the formal notice that you are to be made redundant. Redundancy has to be separate from your normal wages as it is tax free.

[BurblingV8]

Thanks for your help (it is amazing how just a quiet unbiased word just takes the stress out of things)

The strange thing is that the tone in the last week has hardened from them at HR, from soft words to "this is all you get, get out".

They pay only the £330pw and that's it!

I'll write asking for 6 weeks pay inlieu of notice as a bargaining stance and see how it goes!

Thanks again for taking the time to assist me in this... genuinely appreciated.

[Sidewinder]

If their tone has hardened, it should be pointed out that yours could well be harder - failure to consult an employee over TUPE, or being made redundant due to the transfer without being fairly selected from a 'pool' of similarly graded staff is a matter for an Employment Tribunal. Equally, failure to consult over redundancy, even where the redundancy itself is justified, amounts to automatically unfair dismissal.

Fair enough - you have said that you want to avoid getting legal about your treatment, but the ball really is in their court. Six weeks money would be small change compared to the cost of defending a Tribunal hearing after which they would still have to pay you at least four weeks anyway! The extra two weeks pay which you are asking for is, IMO, the least that they owe you for their failure to follow procedure.

[BurblingV8]

I have just received this from them seems a bit odd to me...

"I acknowledge receipt of your letter dated 20.06.08 which I received by fax today. I have checked with my colleague the situation regarding your bonus and have been advised you will not be eligible for a bonus as regrettably you will be leaving, albeit by reason of redundancy, prior to the end of the current financial year and prior to our final accounts being agreed by the auditors."

That seems a bit odd as I was part of the system that made the bonus and it was part of my package... am I wrong?

They have refused point blank to pay the 6 weeks asked for just the 4 weeks notice and have set the date for all this to be the 27th of this month.

[Sidewinder]

I wouldn't agree to anything .....yet. I would respectfully suggest that you are being taken for a ride, my friend!

You say that the company have set the date for all of this to happen as 27th - this Friday?

When did you ACTUALLY receive WRITTEN notice of redundancy? Ignoring for a moment the fact that you were not consulted about your job being at risk - on what date did they write to say "Dear Mr BurblingV8, we regret to inform you that your position is to be made redundant.....the date on which you will beome redundant is X..."?

You cannot be made redundant instantly - you have to be given 4 weeks notice as is your legal right (although they can decide not to make you work it) and consequently you remain an employee in your current position until the date of redundancy. That being the case I would suggest that they pull their finger out pretty damn sharpish and either get the bonus authorised or face the consequences. When is it normal, by custom and practice that you receive your annual bonus?

My suggestion would be to raise a very strongly worded grievance about your treatment, citing the lack of consultation and due process ahead of your transfer of employer, the absence of consultation and due process relating to your being made redundant, and the fact that your redundancy would appear to be occurring solely due to the incoming employer not wishing to accommodate your role. Having taken legal advice (and do so if neccessary), you believe that the company has breached its obligations under the Transfer of Undertakings and Protection of Employment Regulations (2006) and that the failure to consult adequately over your proposed redundancy amounts to Unfair Dismissal. Furthermore, by custom and practice your bonus is payable for the period xx to xx and is normally payable on xx date. Consequently you consider that you also have grounds to claim for a breach of contract.

Seriously - I accept that you don't want to rock the boat, but they are getting off VERY lightly, even if they do pay you what you have asked for in full. At a Tribunal they would have to provide notes taken at your consultation meetings, copies of letters confirming compliance to due process, evidence that all alternatives to redundancy were explored. You hold a considerable advantage here and it would be very much in their interests to be more generous with their severance in recognition of the fact that they have not entirely followed procedure. A compromise agreement may well be their best option.

[BurblingV8]

Thankyou, again! for taking the time to help me.

It feels like I am being railroaded and that's for sure!

If I may I will write a strong letter and put it up on here - if you have the time (and the continued patience) could you tell me where it is too strong/wrong-headed/too weak?

I don't like causing a problem but I feel like I am being run out of the Company, a Company I have saved literally millions of pounds through my going the extra mile in my work and shown loyalty throughout.

I know it is wrong to feel slighted, but I do!

It's an age thing I suppose.

[BurblingV8]

TWIMC,
I am a bit concerned about the matter of my annual bonus payment.

I had rather expected the payment to be honoured by yourselves.

As you will now be aware in the last couple of years I have put up with the obvious failure of XXX to honour any of their obligations to the TUPE when taking over YYY.

This has meant being patient since the takeover waiting for a position to be made for me as Principal Engineer, my patience was at first bolstered by the assurance of the Managing Director on a visit a couple of months after the takeover and the assurance from ZZZ ZZZ on two subsequent occasions that a place will be found for me, on these assurances I assumed positions on site that were not commensurate with my status.

This low regard for my value to the company was also made manifest in the ‘Jobs’ issued to me for consideration within the group, it is obvious that no attempt has been made in the last year or so (despite assurances to the contrary) to find a role for me.

In the interests of good relations I have not invoked the redundancy provisions in my original YYY contract which are hugely more generous regarding redundancy payments.

In addition I have not pushed the fact there are to some degree issues regarding Constructive Dismissal and Unfair Dismissal despite advice that I should do so.

I am advised that should I wish to make an issue of my grievances XXX XXX would be severely disadvantaged financially. This is not wanted or sought by me but continued reluctance to honour fully the barest minimum of obligations will precipitate a hardening of my attitude which will not be a good situation to find yourselves.

Attitudes harden with each discourse and as a result I now insist on the payment of 6 weeks notice rather than 4 weeks originally offered by yourselves as a minimum for amicable departure without recourse to outside intervention.

Regards

What do you think? Too pushy? Can you frame the words better?

[Sidewinder]

Purely a matter of style, but may I suggest the following...?

Dear Sir,

I am writing with regard to the matter of my being made redundant and in response to your letter on the subject of my severance payment. I am afraid that I do not agree with your suggestion that I should forego the annual bonus which has customarily been paid to me at this time of the year purely because it has not been signed off by the Auditors. As far as I am concerned I have made a full contribution for the duration of the period of calculation for bonuses, and consider it unacceptable that the company see fit to withold it, especially considering the circumstances of my departure.

You will be aware that in the period since the takeover of xxxx by xxxx I have been subjected to a huge amount of uncertainty, with the company's Manging Director and others assuring me that that my future would be secure, and that a suitable Principal Engineer's position would be made available. In the interim I feel that I have contributed fully to the operation of the business, and have assumed positions incompatible with my position whilst I believed that consideration was being given to a more permanent role.

I feel that my treatment both at the time of the takeover and in the period leading up to the announcement that I am to be made redundant falls some way short of my employment rights and those required by my contract. Having taken preliminary advice on these matters, I do not believe that I was afforded the rights and employment protection required under the Transfer of Undertakings and Protection of Employment regulations before or since the transfer of the company to xxxx, and furthermore my rights under the Emplyment Rights Act with regard to my redundancy. During both events I do not feel that I have benefited from the requirement for adequate consultation, nor have I been given adequate opportunity to ask questions or seek guidance regarding any viable alternative to redundancy. In short I believe that my dismissal may well be considered unfair in the circumstances and due to the manner in which xxxx has conducted the affair.

The refusal on the company's part to agree to a severance arrangement which reflects my position and loyal service is, I feel, unacceptable and although I had hoped that this matter would be settled amicably, I will unfortunately now need to seek further legal advice on the subject.

Yours faithfully,


Of course you may wish to tone down (or amend if inaccurate) various parts - it depends on how much you want to be given the courtesy that your service should deserve.

[BurblingV8]

You sir, are a prince amongst men.

The tone of your letter is perfect.

I'll keep you up to date.

Quality!