Redundancy pay

[rachmac83]

Hi all,

 

was just wondering if someone can answer my question about redundancy pay.

 

i have been off sick for 6 months and have exhausted my OSP and SSP, so am putting in a claim for ESA

(but that's a whole other story)

 

in July my employers offered me the choice between medical retirement, which in effect was termination on the grounds of capability

or redundancy which they said was the better option. as it is clear that would be off indefinitely i quite happily took the redundancy.

 

they came this afternoon to give me all of the official documents which states ,the amount of redundancy pay and the usual such a six weeks notice paid accrued holiday.

 

my question is this:

as i am not being paid at the minute should the notice period be paid or unpaid?

 

any ideas would be greatly appreciated, i would like to have some idea about it before approaching them, as their really good at that never actually answering a question, you know what i mean you go in asking for a raise and come out with cut but cant seem fathom how that happened!!!!!!!

 

 

thank you all in advance for your help

 

rach

[mariefab]

It depends... You mention 6 weeks notice.

 

If you worked there for 6 years then this the same as the statutory notice and should be paid at your normal working rate.

 

However, if you only worked there for 5 or less years and the extra notice period is because your employer is bound by your contract, or other relevant agreement, to give you 6 weeks notice you would not be entitled to be paid.

 

See ERA 1996 section 87(4) below:

 

http://www.legislation.gov.uk/ukpga/1996/18/contents

 

[papasmurf1cx]

As you state that these employers are 'tricky' on issues such as these, did they give you figures to compare the medical retirement package and the redundancy? Is this a public service or private company? My wife is going through the process of a NHS pension so have some knowledge of the pitfalls !!!!

[rachmac83]

thanks for the reply papasmurf (cool name by the way) and mariefeb,

 

Just going to give you a bit more info from a previous thread about the situation some of it may not be relevant but it cant harm

 

"I have worked for my company for over 6 years, but over the last few years I have developed a health condition that caused me to have periods of time off sick every so often and now I am off on long term sick. I am employed as deputy and my manager is retiring soon, they quite openly told me they wanted me to replace her, but as she has done such a bad job I would have to absolve myself of accountability so the personnel manager advised me to put a grievance in about her, he and then other managers started to pressure me into doing this which I just wasn’t comfortable with I felt like it was backstabbing and I refused.

 

I was so appalled by this behaviour I started looking for a new job and was offered one last October, however it has taken longer than anticipated for the new business to be set up. Just after all this I started to feel bullied by one of colleagues, it got quite bad and boarder line aggressive I told my manager who wasn’t really bothered and didn’t do anything about it. i then found out from other staff that my manager was joining in behind my back and calling me names in the staff room when I was off or not about. I already suffered from depression and this progressed it to social anxiety and a well mild form of agoraphobia.

 

So just when ssp is about to run out I get a visit from personnel and senior manager, they tell me I’m going to be made redundant as they are not going to have a deputy. They told me they considered medical retirement but this was complicated so decided to make me redundant. Now I see the logic of this but can’t help thinking with all that’s gone on this it is a little shady. I feel like they have taken any excuse to ‘get rid of me’ without taking into consideration what has happened or their part in it, and as I’m ill at the moment I feel I can’t fight it as I’m not able to work and there is no way I could work with the bully, and it would be difficult with a team that listened to my manager for how long? "

 

so i have worked for them for six years and it is a worldwide charity if i said brass band im sure you'd know who i meant.

 

with regards to medical retirement i wasn’t part of their pension scheme so they said i would be financially worse off with this option, and as its a charity i have the ethical issue which i did not push this to an ET (as i think i probably could of) so every penny counts to them and they do fantastic work all funded through donations and grants. but on the other hand i have right to get what I’m entitled to, right, and i can’t help but feel that bare minimum about 2 grand as they used the capped rate which is like a 100 pound per week less than what I’m paid does not reflect what i put in.

 

This is why if i don’t get my six weeks paid i will feel a bit hard done by.

 

thanks again

 

rachel.

[mariefab]

Have a look at your contract of employment.

What does it say about the amount of notice required to be given by the employer.

[papasmurf1cx]

I don't understand if you were not part of the pension scheme, how they could medically retire you? Were they perhaps going to dismiss you under their capability procedures?

[rachmac83]

hi, thanks again for the replies,

 

i will double check my contract but in the redundancy policy it just says that you are entitled to 6 weeks notice with an extra week per additional year completed after 6 years. it does not give any information about actual amounts, i imagine that for most people that wouldn't be a problem as they would be working at receiving their wage at the time of notice, but my wage from them at the time of notice is £0.00 (really fun to try to live on that) so im worried that they will base 6 weeks paid notice on the fact that i am currently paid 0 hence paid but not paid notice, a bit of a technicality i think.

 

as for the medical retirement i haven't a scooby i wonder if its a polite way of saying dismissal on grounds of capability. they did say it would be a long process i just took their recommendation at face value i shall inquire as to what they actually meant. I know they have been pushing their new capability policy for some time, i don't really like this term when its due to illness though i think it sounds as if you are no good at your job, we know there difference between restrictions due to disability and just plain being incapable but what about future employers i wouldn't like to think i could be tarred with that brush what do you think? a little bit off on a tangent there.

 

thanks

Rachel.

[papasmurf1cx]

I really do think that if there was a choice between an ill health retirement and redundancy then the exact terms and conditions should be laid out clearly so you can compare them. If medical retirement was just another way to say that they were to dismiss you on medical grounds then on the basis of what you said at post //4 then there is cause for concern.

 

We like to try and tease information out as sometimes posters don't give all the information out in one post. Can I explore at bit about the "health condition that caused me to have periods of time off sick every so often and now I am off on long term sick." Can you explain a bit more about that condition and what effect it has had on you and how it impacts on work? We had a long discussion about a similar matter on another thread and it could also impact a bit here too. I have looked at your other threads and see that the issue of Disability Discrimination has come up before. Do you feel they are pushing you out because of your disability and the problems it causes at work?

 

Have you an insurance cover Legal Protection costs in disputes? One normally has these in home contents insurance and the like?

[rachmac83]

Hi Papasmuf,

 

i will gladly share all the gory details but it will be a long and emotional thread so may take me a little time to get through writing at as to understand it you have know the full story.

i don't often talk about it but am happy to share here as you are all kind, understanding and non judgemental people on here, plus its not face to face that would be a different matter.

 

I will be back to you soon

 

rach

[rachmac83]

So here it is the whole story.

 

sorry its such a long post ut is difficult to know what to omit as its such as difficult situation.

 

 

The back story.

Believe it or not the story actually starts before I was born, my mum was quite seriously anorexic and weighed 6.5 stone at full term, it was a traumatic birth and we were both lucky to survive. It is believed that this is what caused my dyspraxia and basic sight and hearing problems. I didn’t have the best of upbringings my father was violent alcoholic and from a young age, my first memory is at 4 years old, I was sexually abused by my grandfather. My parents split when I was 7 and thankfully I didn’t see him often after that. My mum who had always suffered from MH problems sank into a depression and we barley spoke for years. It was still years before I disclosed this and then it was never spoken of again until I was admitted to hospital last October due to pain and was hysterical from coping with pain and it finally came out, I’ll come back to this in a bit.

When I fell pregnant in 05 we were thrilled but sadly I miscarried, I got pregnant again quite quickly I nearly miscarried at 12 weeks and was really ill for a long time I kept telling them something was wrong but they disregarded this as first time mum nerves. At 21 weeks my son was diagnosed with talipes and sent to specialist at 25 weeks who told us they believed he had suffered a stroke and advised to consider termination – not an option at all for us. I went into labour at 31 weeks but no one believed me and by the time I was seen it was too late to stop and I had to have an emergency c section. He was born with arthrogyposis amounts other non specific things. He fought just long enough for us to meet him and after 10 short hours he slipped away from us. No one can answer if the labour was stopped and i was given the full dose of steroids to bring his lungs on if he could have survived. I couldn’t face a negligence case and concentrated on grieving as you can imagine I suffered from depression as a result.

 

 

My current health problems

Just when I was beginning to get my life on track(2007) I was rushed into hospital with an ovarian cyst and this became a regular occurrence. Again I was made to feel like I was imagining it all since that time I have suffered 3 more miscarriages and battled with my depression. Last October again when I was getting back on top and had just been offered my dream job I was admitted due to an infection following a miscarriage this is when I had the hysterical episode not the first I might add but the first to be taken seriously. Since then it has been an array of appointments I have been under a gynaecologist since 2007. It is thought that I have poly cystic ovaries, endometriosis and scar tissue from the abuse and c sections causing adhesions. My cycle is all over the place causing hormone problems, worsening to the pain etc. I also have 2 genetic blood conditions which means surgery is life threatening so proper diagnosis cannot be made. It has become apparent that the only cure will be to have a hysterectomy which means no more children and all alternative options are out. We so desperately wanted to have a big family. I found this incredibly difficult to cope with

 

I now can barely walk, sit, bend weight bare to the right without extreme pain amounts many other things I have also just been told I am at an extremely]y high risk of cancer and am going for investigations to give us an update in October. I am on a ridiculous amount of pain medication and cannot function without it. Someday I can’t even get out of bed.

As I said earlier I had suffered from depression, and then the bullying began at work, I think this was just one step too far for me I lost all of my confidence and sank into a deep depression and social anxiety began. I now take medication for this I am having cbt with a view to moving on to physcotherapy. I can no longer leave the house without my husband when I do its constant panic attacks. My disabilities are categorised as chronic pelvic pain and social anxiety.

 

 

Work. Consider this with the quote on post 4

Since 2007 I have had sparodic periods of sickness ranging from a couple of days up to six weeks. After oct 2009 I barly completed two full weeks in work before another absence as my condition progressed quickly. And have now been off constantly since march.

I am or was deputy manager at a large nursery that specialises in children with additional needs and families that need additional help. That requires me to have lots of multi agency meetings and an extremely physical job as you can imagine. I was extremely successful in my role. When I was first ill work were supportive and allowed me to do office duties but after a while started nagging me to do the physical side again. Now my condition has worsened I am not able to sit at a desk or concentrate. Nor can I cope with emotional aspect of bullying I have panic attacks just thinking about work. I should mention that when they came to see me I reminded them about this and they appeared surprised about it and told me it’s best just to put it behind it behind and move on as the manager had just retired. It is clear I am not physically capable of working right now.

 

i hope this might provide some light on the situation and thank you so much for reading it.

 

rach.

[papasmurf1cx]

You've had a tough life, sorry to hear about all this.

 

Well all this is helpful to get a better understanding of your history, that's for sure. I'm not sure if it helps more in regard to what they did to you ate work to make you so ill. It still doesn't explain about the medical retirement offer and what was meant by all that.

 

One thing that jumped out at me was the fact that you couldn't face a legal fight over the death of your baby. If it came to it would you be up for a fight with this employer? Or is it you just want the best deal you can get and move on?

[Sidewinder]

Hi Rachmac

 

I have only just seen this, so apologies for not having commented earlier, and to be honest I find it difficult to do much more than to express sympathy for what you have been through.

 

My opinion (and let me stress that is all it is), is that your notice (or pay in lieu of notice) should be paid at your contracted rate, not what you are currently earning. If it were the case that your severance were being paid in line with your current position, then surely your redundancy would also be nil. Redundancy pay is calculated on your contracted position at the date of termination, not the currrent state of play, so by the same token, the notice should be at your contracted rate.

 

I suppose much would depend on whether you have been given formal notice of redundancy and that this shall be at the end of your contractual notice period, or whether you have been told that you will receive a redundancy payment and a payment in lieu of notice. If the six weeks is allowed to elapse as if you were working your notice then you would have six weeks further with no wages, and then a redundancy payment (plus accrued holiday), however if they propose to just pay you off then that would be different.

 

Does that make sense? The only other thing that I might advise is to ask ACAS for advice.

[rachmac83]

Hi sidewinwinder and thanks for the reply.

 

First in response to papasmurf my employers are not responsible for my physical health. The problem was the bullying, I was coping with bullying from the other staff member who by the way is below me, only just, my manager was not taking my concerns seriously her only offer to attempt to help was to go and talk to staff member about it in front of all the staff and children, how unprofessional? I feel this was basically an attempt to humiliate me. As this point I knew something was wrong, after I came back from the period of sickness I was in the office when slowly staff became to come in and tell me that this staff member and my manager had taken it upon themselves to join forces and make fun of me, some really personal stuff such as fat jokes and to insult my work telling others to take over it when I was absent and refuse to give the cases back to me. Other things such as like picking on my methods and trying to isolate me. I could not cope with this I was distraught my manager especially given what I had done for her.

 

I am employed as deputy and my manager is retiring soon, they quite openly told me they wanted me to replace her, but as she has done such a bad job I would have to absolve myself of accountability so the personnel manager advised me to put a grievance in about her, he and then other managers started to pressure me into doing this which I just wasn’t comfortable with I felt like it was backstabbing and I refused. I was so appalled by this behaviour I started looking for a new job and was offered one last October, however it has taken longer than anticipated for the new business to be set up.

]

I couldn’t face going back after that. That’s when the social anxiety I wouldn’t go out for fear of bumping into a colleague or client, and it kind of escalated from there now I’m terrified of people of being judged or made fun of. I won’t leave the house without my husband and suffer panic attacks.

 

I can’t answer about the medical retirement as I really don’t know. All that was said was that these were the two options and redundancy was easier and I would probably be financially better off, as well as the medical retirement being a long and difficult process.

 

Im up for fighting for what I believe is mine but other than that I just want out.

 

Sidewinder

I have been given my six weeks notice with my last day being the 3rd of November, obviously I won’t be working this so does that mean I won’t get any paid notice because they’re not giving it to me in lieu and I won’t be getting a wage anyway

 

Thanks

Rach

[Sidewinder]

Sidewinder

I have been given my six weeks notice with my last day being the 3rd of November, obviously I won’t be working this so does that mean I won’t get any paid notice because they’re not giving it to me in lieu and I won’t be getting a wage anyway

Rach

 

I fear that may well be the case, but it may well be a point for negotiation. It would seem that they may well just let the six weeks run and then pay you Redundancy. Probably worth an enquiry as to exactly how the final salary payment will be made up and how much you will receive, including pay, redundancy and holiday. See what they come back with, or have they already given you a breakdown?

[mariefab]

If you were made redundant you are entitled to three separate types of payment:

 

1. Redundancy pay

(Calculating back from 3rd november)

For each you were aged 22 to 41 you should be paid one week's wages.

For each year that you were 41 or over you should be paid one and a half week's wages.

 

These are the statutory requirements. Your contract or the Company's own redundancy policy may provide that you are entitled to more redundancy pay, but not less.

 

2. Notice pay

As you worked there for 6 years the statutory minimum notice period is 6 weeks.

 

You are on long term sick leave and have exhasted your OSP and SSP entititlement. So, whether, or not, the notice period should be paid at your normal contractual rate depends on how much notice your employer was required to give you according to your contract of employment.

 

If your contract indicates that your employer should give you 6 weeks notice; this should be paid at your normal rate.

However, if your contract indicates that your employer should give you 7 weeks notice or more; they do not have to pay.

 

3. Holiday pay

You are entitled to be paid for any untaken holiday accrued up to 3rd November.

[Sidewinder]

If you were made redundant you are entitled to three separate types of payment:

 

1. Redundancy pay

(Calculating back from 3rd november)

For each you were aged 22 to 41 you should be paid one week's wages.

For each year that you were 41 or over you should be paid one and a half week's wages.

 

These are the statutory requirements. Your contract or the Company's own redundancy policy may provide that you are entitled to more redundancy pay, but not less.

 

2. Notice pay

As you worked there for 6 years the statutory minimum notice period is 6 weeks.

 

You are on long term sick leave and have exhasted your OSP and SSP entititlement. So, whether, or not, the notice period should be paid at your normal contractual rate depends on how much notice your employer was required to give you according to your contract of employment.

 

If your contract indicates that your employer should give you 6 weeks notice; this should be paid at your normal rate.

However, if your contract indicates that your employer should give you 7 weeks notice or more; they do not have to pay.

 

3. Holiday pay

You are entitled to be paid for any untaken holiday accrued up to 3rd November.

 

The right is for the OP to be given at least six week's notice of redundancy, and it would appear that she has been. If the OP is not currently being paid, then the six week's notice also need not be paid, as she is effectively still at work (but not working so is not paid unless she attends). The difference would be if she was being dismissed immediately but not required to serve out the notice period. In that case, the employer should pay the contractual rate of pay for that period (and in certain circumstances, pay it gross of tax and NI), as in not giving the OP the opportunity to work, they would be potentially denying her the choice to attend and be paid.

 

My opinion, but stand to be corrected.

[mariefab]

If the reason for not attending the workplace during the notice period is that the employee is on sick leave the notice should be paid.

 

http://www.legislation.gov.uk/ukpga/1996/18/section/88

[honeybee13]

Rachmac, I still think you should pursue this offhand comment about medical retirement. As has been said before, you should be able to see the figures and make your own mind up about what would be best for you. Employers bandy around these terms without always knowing or explaining what's involved. 'Retirement' benefits can only be offered to someone who's been in a pension scheme, and it would have to be proved that you are not going to work ever again.

 

Other employers, like the NHS as I've learned from these forums, have a sickness benefit that pays out while someone is too ill to work and I think they call that some kind of pension.

 

So, if you feel like being difficult, I would ask the question as to why they mentioned medical retirement and what's involved. You have nothing to lose, and if you decide redundancy is the right route, then the financial side can stay as it is. Does your employer have HR people?

 

HB x

[rachmac83]

Thanks for all the replies

 

thank you mariefab for that link i tried to find to find the info on that site before but gave up as i couldn't cope with wading through all of the info, its a bit impossible if you don't know where to look.

 

now i have a bit more information i have just emailed my personnel manager to get all the answers direct from the horses mouth.

 

Im glad i have some knowledge to challenge it straight away if needed

 

Ill let you know when they give me an answer and what they say.

 

Thanks

 

Rachel

[honeybee13]

Good luck with this and please let us know how you get on.

 

HB x

[rachmac83]

Hi all,

 

Just had an email back from my personnel manager saying they will be paying me full pay for my 6 weeks notice so im quite relived about that.

 

now just got to decide what to do about this medical retirement issue

 

thank you all for your help and advice

 

rach.

[honeybee13]

Well, that's a step in the right direction. See if they'll give you full information about the medical retirement comment. Are you contacting HR about that too? It would be the best place to start.

 

HB x

Edited September 29, 2010 by honeybee13
Clarity.

[Sidewinder]

If the reason for not attending the workplace during the notice period is that the employee is on sick leave the notice should be paid.

 

http://www.legislation.gov.uk/ukpga/1996/18/section/88

 

Thanks for that