Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default Am I entitled to redundancy?

    Hi. At the end of March the company I work for is closing down. The partners are going their separate ways and both are setting up their own business. They have said as far as they are concerned the new business's are just that - New, with changed names, accounts etc. One is staying on the original premises, and he has offered me employment. One of the partners's thinks I am not entitled to any redundancyicon, the other thinks I am. I have worked there for 16yrs. I am asssuming I will be given a new contract once the new job starts. Should I be entitled or not? please help. Many thanks.


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    Default Re: Am I entitled to redundancy?

    You are either entitled to redundancyicon or TUPE (that is the transfer of all your employment rights and conditions intact to the new employer). I cannot tell you which as there simply isn't enough detail to say. It seems that this is a difference between the partners - my best advice would be that they get legal advice on this matter because it is definitely one or the other, and they will fall foul of the law very seriously (and very expensively!) if they don't.


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    Default Re: Am I entitled to redundancy?

    Thanks for your reply, it was very helpful. Just to elaborate the partner who has offered me a job, has said that I should be entitled to redundancyicon, as the original business ends at the end of march. The other partner has said that if I accept a position with their ex partner, it would be illegal for me to have a redundancy payment. If I am offered TUPE it puts all the responsiblity of future redundancy with the partner who has offered me employment, which seems unfair to him, as I have been there for 16yrs now! many thanks


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    Default Re: Am I entitled to redundancy?

    It may seem unfair to him - but it is the law! If this is a transfer of undertakings in law, then he takes on all your employment rights and conditions as are, and there is no getting around it. If he attempts to, even with your collusion (it seems you get on with them and might be tempted!) then he could land himself with a bill that will make redundancyicon (whenever that might occur) triivial. And so would the other partner. I do not think that it is unreasonable for them to get legal advice - it will cost them a pittance compared to the loss they could face. They are in business - they should be making sure that their business practices accord with the law. And you have a lot to loose here too. If they are decent people, they will want to get it right, even if it means there is a bill to do so.


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    Default Re: Am I entitled to redundancy?

    Once again thanks for your reply, it's is very helpful. Sorry to keep bothering you, but it's difficult to find information on the web. I have looked into TUPE and that seems to apply if the original business continues under a new owner. The business I work for will cease trading in March. And the business I will work for, would be a new business with a new name, but I would be working for one of the partners of the original business. It's the other partner being difficult, she said that she has been advised (I think by her accountant) that it would be illegal to pay me redundancyicon and then me being employed by the other partner. I feel that I should be entitled to redundancy as the new business has no ties to the current business. I'm not sure if I'm right! she is a force to contend with. I thought ACAS may be able to advise me! Many thanks


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    Default Re: Am I entitled to redundancy?

    ACAS cannot be held liable for any (often) incorrect advice that they give. The correct course of action is for your employers to take legal advice - which does not come from accountants. Even if the company stops trading that does not mean it isn't a transfer of undertakings - a company can go bankrupt and still be subject to TUPE when bought out. The test is far more complex than you think. And this isn't your problem - it is your employers. I don't think you understand fully, but if they pay you off you will loose all your employment rights. This isn't simply about about whether or not you get redundancyicon - as I have already said - you get one or the other and that is an absolute. But your employment rights are valuable to you.


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    Thanks for the reply. I will let them get legal advise and wait on their decision. With regards to not losing my rights, I only get the basics anyway. I've had children so no maternity needed. But thanks for the advise

    Quote Originally Posted by SarEl View Post
    ACAS cannot be held liable for any (often) incorrect advice that they give. The correct course of action is for your employers to take legal advice - which does not come from accountants. Even if the company stops trading that does not mean it isn't a transfer of undertakings - a company can go bankrupt and still be subject to TUPE when bought out. The test is far more complex than you think. And this isn't your problem - it is your employers. I don't think you understand fully, but if they pay you off you will loose all your employment rights. This isn't simply about about whether or not you get redundancyicon - as I have already said - you get one or the other and that is an absolute. But your employment rights are valuable to you.



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    Default Re: Am I entitled to redundancy?

    Don't feel afraid to suggest that they seek legal advice if the opportunity arises, rather than just being fobbed off. The law is clear in that this is either one situation OR the other - you may think that your employment rights are only basic, but with long service goes the right not to be unfairly dismissed, which in the current environment is worth a huge amount. Therefore a redundancyicon payout with 16 years service might seem attractive, but it may also be better to retain the long service under TUPE, with your employment rights intact, and if the worst happens in the months or years to come you would still enjoy the employment rights AND maintain (or even enhance) the redundancy payment.

    Please keep us up to date with developments.

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    Thanks for your reply. I have read that if You find employment straight away,you may not be entitled to redundancyicon . I'm unsure if this is the case but I will post any developments. Many thanks


    Quote Originally Posted by Sidewinder View Post
    Don't feel afraid to suggest that they seek legal advice if the opportunity arises, rather than just being fobbed off. The law is clear in that this is either one situation OR the other - you may think that your employment rights are only basic, but with long service goes the right not to be unfairly dismissed, which in the current environment is worth a huge amount. Therefore a redundancy payout with 16 years service might seem attractive, but it may also be better to retain the long service under TUPE, with your employment rights intact, and if the worst happens in the months or years to come you would still enjoy the employment rights AND maintain (or even enhance) the redundancy payment.

    Please keep us up to date with developments.



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    Default Re: Am I entitled to redundancy?

    Quote Originally Posted by Nettyann View Post
    Thanks for your reply. I have read that if You find employment straight away,you may not be entitled to redundancyicon . I'm unsure if this is the case but I will post any developments. Many thanks
    That would also not be correct! If you have been served redundancy notice and find alternative employment you serve counter-notice and still get your redundancy. If of course you are redundant and not TUPE'd - one of which is certainly the case.

    I do not wish to be rude - but you seem remarkably keen to let your employers "off the hook" here. Employment rights are valuable commodities, and will become more so soon when you will need 2 years employment to claim most of them! Your family may have all "arrived", but most people have a strange attachment to being able to pay the bills and have a social life, a holidayicon and so on. Your employers may be the nicest people in the world - but they are still employers. It is their legal obligation to get this right, not yours. If things go belly up, I seriously doubt that your employers will be looking after your interests above their own - but you seem almost keen to forego not just your possible redundancy payment, but also your employment rights. Look after your own interests - I can assure you that they will be looking after theirs. No matter how nice they may be.


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    Default Re: Am I entitled to redundancy?

    Thanks for the reply. I think you are mistaken, I am saying I believe I should be entitled to redundancyicon pay. I will not let them fob me off, and I have always fought for my rights. I just needed some advise on my legal position. Even if I am given a redudancy payment my employer is likely to match terms and conditions, just purely because I can take my skills elsewhere and they would like me to continue with the business when they retire in five years. Believe me, I know I am an employee and not a friend, I just wanted to know what I am legally entitled to . And with regards to the redundancy being withdrawn on finding empoyment, this is what I found whilst trawling the net. If they make a clause in your redundany package that they can do, probably incorrect, which is why I asked for advise on here. Please don't think I want to let them off the hook, because that is just not me!
    Quote Originally Posted by SarEl View Post
    That would also not be correct! If you have been served redundancy notice and find alternative employment you serve counter-notice and still get your redundancy. If of course you are redundant and not TUPE'd - one of which is certainly the case.

    I do not wish to be rude - but you seem remarkably keen to let your employers "off the hook" here. Employment rights are valuable commodities, and will become more so soon when you will need 2 years employment to claim most of them! Your family may have all "arrived", but most people have a strange attachment to being able to pay the bills and have a social life, a holidayicon and so on. Your employers may be the nicest people in the world - but they are still employers. It is their legal obligation to get this right, not yours. If things go belly up, I seriously doubt that your employers will be looking after your interests above their own - but you seem almost keen to forego not just your possible redundancy payment, but also your employment rights. Look after your own interests - I can assure you that they will be looking after theirs. No matter how nice they may be.



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    Default Re: Am I entitled to redundancy?

    What exactly is the 'partnership' - is it just this a partnership or is it a ltd co? or indeed an LLP?

    Why not get one partner (the one who doesn't) take you on to indemnify the other against the potential future liabilities of taking on an EE with 16 years continuity of service?

    Che

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    Default Re: Am I entitled to redundancy?

    Quote Originally Posted by Nettyann View Post
    Thanks for the reply. I think you are mistaken, I am saying I believe I should be entitled to redundancyicon pay. I will not let them fob me off, and I have always fought for my rights. I just needed some advise on my legal position. Even if I am given a redudancy payment my employer is likely to match terms and conditions, just purely because I can take my skills elsewhere and they would like me to continue with the business when they retire in five years. Believe me, I know I am an employee and not a friend, I just wanted to know what I am legally entitled to . And with regards to the redundancy being withdrawn on finding empoyment, this is what I found whilst trawling the net. If they make a clause in your redundany package that they can do, probably incorrect, which is why I asked for advise on here. Please don't think I want to let them off the hook, because that is just not me!
    I am quite definitely not mistaken. If an employee is given notice of redundaccy the employer is obligated to pay that, even if the employee finds another job elsewhere. If they find a job within a transeferring organisation then they do not get redundancy - they are TUPE'd with their employment rights intact. It is one or the other - which I have said right from the very beginning. But based on what you have said here it is not at all clear which of these it is. It may be that what you want is your redundancy pay, but that does not mean that that is what is lawfully yours, and if the employer gets it wrong then it could cost them and you. But I do understand now - the question is not about what the law says to protect you, it is about what you have decided you want. I have given you the legal position - which is correct. If you agree to something else then that is your decision and your risk.


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    Default Re: Am I entitled to redundancy?

    There are 2 married couples. They are all partners. At the end of March the business ends. I have been asked to work for one of the couples. The business will be under a new name and have nothing to do with the previous partnership. It is not a Ltd company. I will see what offer they come to me with. I just thought because of the situation I have described that I would be entitled to redundancyicon over TUPE as the business is ending and not being transferred.


    Quote Originally Posted by elche View Post
    What exactly is the 'partnership' - is it just this a partnership or is it a ltd co? or indeed an LLP?

    Why not get one partner (the one who doesn't) take you on to indemnify the other against the potential future liabilities of taking on an EE with 16 years continuity of service?

    Che



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    Default Re: Am I entitled to redundancy?

    When I say you are mistaken, I am not referring to your legal opinion. I am referring to the opinion you have made regarding my view on this situation. If you refer to my original posting. The business is closing at the end of March it is not transferring, so that information was always there. The offer of employment is for the new business, which is why I thought I would be entitled to redundancyicon. I am not after what I want, I am after what I am entitled to. And this information is difficult to find.


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    Default Re: Am I entitled to redundancy?

    I have been telling you all along. It is not as simple as you think. I fully understand that the business is closing, but that does not mean that TUPE does not apply. Businesses can go bust (and that is a very definite closure) and be bought up by somebody entirely different, and still be classed as a TUPE. In this case you are staying in the same premises, with one of the former partners - and could it be that the business will be very similar or the same as what you are doing now as well? In which case there is a very strong possibility that it would be classed as a TUPE. What you are misunderstanding is what the legal definition of transferring is - it is not about whether the business is closing and the partners going their own ways, it is about the context of the migration from one employer to another. This is not a case of your resigning because you have found another job, packing your desk and going somewhere else. So it may be either a TUPE or a redundancyicon and only a legal opinion on the cirsumtances, taking into account all the details, can answer the question - and since that legal opinion is up to the employer to obtan, I therefore said that this is what they should do.



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