Made redundant whilst receiving sick pay

[Noebys]

This is my first post so hopefully I will cover everything.

 

I was diagnosed with Depression in September 2009 and my GP sent me to be treated with a pyschiatrist.

I was advised to have time off work from 3rd week in December 2009.

The diagnosis was depression brought on by an overload of work situation.

The company is aware of this and it is detailed in a medical report from the pychiatrist.

 

I am still off work and likelt to be for at least another 3 months (according to the pychiatrist). I have received the correct number of weeks full pay and then received sick pay from the company. This sick pay runs out in two weeks time, and I then have to apply to the JobCentre for SSP.

 

I am 63 years of age and have worked for this company for 6 years. Today I have received a 14 day consultation letter of redundancy. The whole department which I work in (8 people) has been closed. I have the 14 day consultation and then my contractural notice period of 2 months.

 

Keeping to this part first, will I received 2 months sick pay for my contractural period or two months full pay?

 

Moving to another area,

I went to see a solicitor a couple of weeks ago as I became a bit 'angry'

that I was only receiving sick pay when the sickness was brought on by the company.

 

 

It was only a half hour chat but he advised me that depression brought about by work is classed as a personnel injury

and, whats more, as it will last 12 months is is classed as a disability.

i could therefore sue the company.

 

 

I know solicitors will sometimes 'encourage' people to make claims,

but has he exaggerated the position in my favour or do i really have achance of claiming from the company on this basis?

I am not the 'fighting' type and would probably have dismissed this if it wasn't for the redundancy.

[Bigredbus]

This is my first post so hopefully I will cover everything.

I was diagnosed with Depression in September 2009 and my GP sent me to be treated with a pyschiatrist. I was advised to have time off work from 3rd week in December 2009. The diagnosis was depression brought on by an overload of work situation. The company is aware of this and it is detailed in a medical report from the pychiatrist.

I am still off work and likelt to be for at least another 3 months (according to the pychiatrist). I have received the correct number of weeks full pay and then received sick pay from the company. This sick pay runs out in two weeks time, and I then have to apply to the JobCentre for SSP.

I am 63 years of age and have worked for this company for 6 years. Today I have received a 14 day consultation letter of redundancy. The whole department which I work in (8 people) has been closed. I have the 14 day consultation and then my contractural notice period of 2 months.

Keeping to this part first, will I received 2 months sick pay for my contractural period or two months full pay? (Redundancy payment should be calculated based on your gross remuneration)...

(a) When you say the 'whole' department is to be made redundant, is the company closing down, or just the department?... Has an alternative role been considered?

Moving to another area, I went to see a solicitor a couple of weeks ago as I became a bit 'angry' that I was only reciving sick pay when the sickness was brought on by the company. It was only a half hour chat but he advised me that depression brought about by work is classed as a personnel injury and, whats more, as it will last 12 months is is classed as a disability (the former statement is valid as per the latter, you would need a prognosis from your psychiatrist). i could therefore sue the company. I know solicitors will sometimes 'encourage' people to make claims, but has he exaggerated the position in my favour or do i really have achance of claiming from the company on this basis?

I am not the 'fighting' type and would probably have dismissed this if it wasn't for the redundancy.

 

...

[Noebys]

Hi Bigredbus

Thank you very much for your reply and thank you for the confirmation that my redundancy payment should be calculated based on gross renumerations. I understand there are two payments - statutory redundancy (in my case 9 x £380) and the two months notice. From what you say the two months notice will be based on full renumeration even though I am only receiving SSP now.

 

The company is not closing. They are outsourcing the work done by the technical side in our team and keeping the office staff to process paperwork requirements of the external source. So 7 people are being made redundant. It is a relatively large company.

 

A prognosis for my condition was written by the psychiatrist on 9th June. In summary it says that:

the prognosis for my condition remains fair dependent upon my acceptance of medication and psychological treatment. It says my problems stem from work and that I have expressed a need (financially) to keep working. he believes that once I am better I will be better placed to discuss my abilities with my employers, and this may be achieved with time and graded steps. To achieve this he (me) needs his employers to be sympathetic to his situation. He (me) may be able to work until retirement as he requires, and this may be achievable with watchful progress.

 

I will be 65 in Oct 2011. Obviously this news has knocked me sideways a bit!

[desperate31]

Hi Noebys

 

I can understand how you feel you have been pushed into a corner and being forced to do something which you aren't mentally prepared for. Find out all your options - whether there are any other viable jobs available, what exactly your redundancy package will be (statutory/notice period/payment in lieu of notice/holiday pay etc) and talk to someone about them so you can get a balanced viewpoint on your plan of action.

 

I also suffered from depression for a year because of the level of stress, harassment and amount of work my old company was pushing on me. It is their fault that the last year of working there in a total of 5 years was complete misery even to a point far beyond where I thought I could plunge.

 

Having tried to force me to resign because my face no longer fitted through harassment, bullying, a disciplinary and a fabricated grievance they did me the best favour possible. They made me redundant. I too needed to work for financial reasons. The package I was given was the minimum legally I could be given but it meant that I could take a little time to sort myself out.

 

What I'm trying to say is that although I know finding a job so close to retirement will be difficult in this economic climate, it could well give you the opportunity to get paid for getting away from the negativity that is your work environment. You might be sitting there thinking what does this person know....I know because a good friend gave me exactly the same sort of advice.

 

Look on redundancy as an opportunity. The first month I was redundant I concentrated on my health, went to counselling, did what I wanted when I wanted. It did me a world of good. I no longer felt permanently depressed. It was like a weight off my shoulders.

 

Keep your chin up and keep fighting - you can get through this dark patch. There are people out there routing for you.

[Noebys]

Hi Desperate31

Thank you so much for your reply.

My psychiatrist has always said that work is the problem, and it would be a long time until I was back to 'normal' when I returned to work. Even a phased return would need to be managed carefully.

So your way of looking at it is almost a way out. I don't want to feel like this for another 6 months / a year and, as work is the problem, why don't I just get rid of the problem? I know financially I will have concerns, but I am only on ESA now anyway, and health is worth more than money at the end of the day.

I feel so much better already - thanks again. I can't thank you enough!

[mariefab]

A word of warning here.

Although the Company may choose to pay you at your normal rate for 2 months notice, they are not required to pay you anything at all.

 

From what you say in your opening post, at the time that you are made redundant your entitlement to sick pay will have ended. So, if redundancy wasn't happening you would have been receiving no pay from your employer from that date.

 

Your contractual notice period, from your employer, is 2 months. The statutory notice period after 6 years service is 6 weeks. As the contractual notice is at least a week longer than the statutory notice you don't have a statutory right to be paid for your notice period.

 

Employment Rights Act 1996 (c. 18)

[Noebys]

Thanks Mariefab - this just goes on and on doesn't it?

You are correct - I applied last week for ESA and redundancy consultation then comes a week later.! Good timing eh?

 

So what you are saying is really what I thought - a company can make you ill, effect your normal day to day living and retirement, then kick you in the teeth.

 

No more to say really - other than thanks for the warning!

[Noebys]

Myself and 4 others have been made redundant and our work outsourced. We worked in different areas across the country. We think TUPE should apply to us as the external companies are now carrying out our work functions but our company is saying that because the work is being outsourced to 8 different companies (in different areas of the country) they cannot apply TUPE as they can't allocate one of us to each company. Is this a valid reason not to apply TUPE?

[postggj]

Tupe is where one company aquires the take over of another

 

you dont say if the company is affected by shares

 

i need more info as at the moment ime drawn to unfair contracts

[postggj]

The tupe directives are where a business, or a discrete part of a business is transfered from one employer to another, for example, sale,merger buy-out, or death of the owner

[Noebys]

Thanks postggj for the prompt reply.

The position is that a complete department offering services to our customers has been made redundant. Whilst there were 5 of us in different parts of the country, this exact same work is now being done by 8 external companies who have no connection at all to the company we worked for.

From what you have said, we are wrong with our thoughts.

[postggj]

Looks that way

sorry

[Noebys]

At least we know the facts now.

Thanks again

[Noebys]

After being off sick for 10 months (and now on Government sick pay after the regulation assessment) I was made redundant. I took advice from CAB and have completed the forms for the Industrial Tribunal (unfair dismissal) and sent them off. The company solicitor has dismissed the claim as being 'out of time'.

 

I know I have 3 months from redundancy to claim, but how is this calculated?

 

I had 2 weeks consultation which ended on 5th August. My contract says I get two months notice. I was paid on the normal payday at the end of October until 4th Oct and all my company benefits were in force until 4th October.

 

I have taken it that I was redundant from 4th October and I applied to the IT within three months of this date. The company solicitor suggests that the IT should dismiss my case as I was made redundant on 5th August.

 

What date is redundancy effective from please - the end of consultation or when you get paid to?

[honeybee13]

Hello there. I don't know the answer so won't guess, but someone who knows will be along later, I expect. It wouldn't be surprising to see the other side's lawyer trying this on - we hear all sorts here.

 

My best, HB

[MONX]

I think it depends on the notice period being paid "in lieu" as this means "instead of". I think what you employer was saying is that your employment ended on 5th August and you were paid in lieu of your notice. That would seem to be how they have looked at it, however I am confused as to the "company benefits" what did these entail and did you recieve written confirmation that they would stay in place until the October date?

[Noebys]

Hi Monx

I still had my company car until 4th October and medical fees were still being paid for by my private insurance benefit until 4th October as well.

Edited February 16, 2011 by Noebys

[elche]

Hi Noebys,

 

I just wrote a nice post explaining it all but - then deleted it ....doh.

 

Basically if I tell you (as may have happened to you) on the 5th August, 'I dismiss you today with 2 months PILON' then the EDT will likely be 5th August and thus the ET claim must be with the ET on the 4th November

 

You may well be out of time

 

Sorry

 

CHe

[Noebys]

Hi Elce

So, if this is the case, would I not have been paid money in lieu of benefits as well?

Also, would I not have been paid PILON in August?

Would I have had to have it in writting that ' 'I dismiss you today with 2 months PILON' because I didn't receive anything like this.

 

Sorry for the further questions!

[SarEl]

If this was PILON then Elche is correct - but in order to be PILON you would have to be told that it was because there are tax implications. There is a test though - what were you paid? Because PILON can be paid in "installments" (unusual, but it can be done) - but no tax or NI would have been deducted. So have a look at your wage slips for the period - if the include deductions for tax and NI then you remained an employee. Benefits aren't a reliable test because an employer can choose to provide benefits after a termination date. But they cannot pay tax and NI for someone they do not employ.

[Noebys]

Hi SarEL

Brilliant! Tax and NI deductions were taken from my final pay in October.

So presumably this is a stalling tactic?

 

Thank you so much!

[SarEl]

Or the solicitor has been misinformed by the client! But if you were paid on your normal pay day your normal pay (whatever that was) with tax and NI deducted then you were still employed. If your EDT was 4th October your claim should have been submitted by 3rd February.

[Noebys]

Point taken SarEL! My claim was submitted on December 22nd so all should be in order.

 

Thanks very much again!

[elche]

Brilliant! Tax and NI deductions were taken from my final pay in October.

So presumably this is a stalling tactic?

 

I'm afraid I wouldn't agree that this definitively proves that your EDT will be extended to 4th October; (although of course it strengthens your argument that it should be extended.) EDT is a statutory construct and does not rely on HMRC's opinion of who is and who is not an employee.

 

In fact it is not without precedent that a person has persuaded HMRC (then the Inland Revenue) that they were self-employed for tax purposes, whilst at the same time convincing the Court of Appeal that they were an 'employee'.

 

My point is that one does not flow from the other, I don't think you can say, 'I received pay with tax and NI deducted on the 4th Oct, ergo my EDT cannot pre-date this'

 

I think you need to look more carefully exactly what happened when you were told you were dismissed, and in particular that part of the conversation where you were told that instead of attending work till Oct 4th you would instead receive some form of pay in lieu for this period of time. I believe that, “....it is pre-eminently a matter ....... for the tribunal in every case to determine in what sense the expression has been included in the written or spoken words of dismissal" Leech v Preston Borough Council [1985] i.e. did the employer mean:

 

1) 'You are dismissed NOW and I will pay you for the notice you were entitled' = EDT that day (or day after)

2) 'You are hereby given notice of your dismissal' and I will pay you in lieu of actually working that notice = EDT at end of notice period.

(Adams v GKN Sankey)

 

The point may seem a minor one, but as you are finding an important one. I do wish you the best of luck, and hope for your sake I am wrong (not unheard of!)

 

I would advise you to have a read of the above case(s) and s.97 ERA 1996.

 

Please keep us updated on progress.

 

Che

[SarEl]

I wouldn't disagree in principle with what you say, but based on the OP's post, they say that there was no statement that PILON would be paid instead of notice. And PILON does not attract tax (unless it is over the £30k mark) or NI. Where no agreement to pay to pay PILON exists and the pay has additionally been taxed and NI'd then the employer could not then claim that it was PILON.