Can I claim stautory redundancy? *** SUCCESS ***

[Woodi79]

Following my previous thread, I have received my final pay and P45, however I have not been offered any form of redundancy. My fixed term contract ended on the 28th December and, after requesting a letter, I received confirmation that the reasons behind the no-renewal of my fixed term contract were a lack of work to justify keeping all full time employess. So, it is my understanding that in order for a redundancy to be genuine it must fit 1 of 2 categories, under the Employment Rights Act 1996 a dismissal is perceived to be enacted by reason of redundancy where there is diminshed requirement of the business for employees to carry out work of a particular kind. So it appears that I have been made redundant, but not offered my statutory redundancy despite having worked continuously on successive FTC for just over two years.

Am I right???

[borisbeaver]

I'm afraid that as you were on a fixed term contract and have got to the end of it the employer does not have to renew it. It is not redundancy. You have not been dismissed. Your contract has come to it's natural end.

 

This is one way that an employer can manage their workforce and costs. The NHS does it all the time.

[Woodi79]

THanks for the reply. However, is it not the case that the non-renewal of a fixed term contract is automatically classed as a dismissal, fair or unfair, then if the reasons for this dismissal is 'reduction in work' then it can be classed as redundancy? I am no legal expert but this was my understanding after trawling through legislation and a few similar cases.

[Emmzzi]

the key word in this link is "unexpectedly"

 

https://www.gov.uk/fixed-term-contracts/renewing-or-ending-a-fixedterm-contract

[borisbeaver]

A fix-termed contract can be extended. However, in this case, the employer has decided not to due to lack of work. Not renewing fix term contracts can be classed as natural wastage and not redundancy and is perfectly legal. It is not dismissal or Redundancy

[Woodi79]

Thanks all. It appears i have been screwed over for standing up to unfair, cowardly managment/director(s). I helped my now ex-colleagues keep their jobs while not looking out for myself. The good guys always lose out!!! Never again

[Emmzzi]

Welcome to the world of contracting. I've done my time on fixed term contracts and rule one is make the bosses your mates, not the workers. Head down and gob shut next time!

[Emmzzi]

(there are of course a huge number of rule ones btw!)

[borisbeaver]

Any fixed term contract will always have the possibility of non-renewal at the end of the contract period.

[becky2585]

Whoa, hold on. Sections 95 and 136 of the Employment Rights Act 1996 expressly states that the non renewal of a fixed term contract counts as a dismissal for unfair dismissal and redundancy purposes.

 

That means, regardless of the fixed term, if you've been employee continuously for over a year, you're entitled to the same protection as a permanent employee. Which means the dismissal has to be for either misconduct, incapability, illegality, redundancy or some other substantial reason. To get out of paying a redundancy payment, they'd probably try to argue SOSR, but it sounds more likely to be a redundancy to me. I don't think they can argue SOSR, as they engaged you on a series of contracts, rather than making clear the time period and purpose from the start.

 

If the employer didn't consult with you, it does sound like it could be an unfair dismissal to me...

[Woodi79]

I have looked into that, its one of my list of things I am considering taking them to an ET over. Aswell as a few points under the FTE regs.2002, namely not being given my right to recieve information on a permanent vacancy, asserting my satutory rights(grievances) and anything else I can find. Sounds petty but I hate the fact they can get away with it treating people like they do. I just want justice, probably wont happen, but I havent got anything to lose. I appreciate everyones feedback greatly, but I am going to push for redundancy pay, they seem to act on their own rules so lets see how much they really know, one can only try!!!

[mariefab]

The non-renewal of a fixed term contract is a dismissal, but it isn't a reason for dismissal.

 

Becky is absolutely spot on.

Especially as you have confirmation that the reason for your dismissal was 'lack of work to justify keeping all full time employees'. i.e. a description of redundancy.

Here's a recent case that explains it much better than I could.

 

http://www.bailii.org/uk/cases/UKEAT/2012/0238_12_0211.html

[Woodi79]

Thanks mariefab, I indeed have two documents now from my employer explaining that the reasons for my non-renewal of contract was for 'lack of work'. To me this is a redundancy reason and since my last post I have submitted a letter to my former employer requesting statutory redundnacy pay or reasons for witholding payment, others might not agree but its worth a try. Depending on the outcome of this(watch this space), I am considering an ET for reasons stated before in my thread, less favourable treatment, asserting statutory rights(grievances), unfair dismissal. Not to seem bigheaded, but I was one of the 'better' employees and was told this by one manager who tried to fight my corner,and was told on two different occasions I would be taken on permanent. I know this cant be taken as fact, but the minute I stand up for myself and colleagues I find myself out the door! This is not the first time this has happened with my 'ex' employer, they seem to have a habit of getting rid of good employees and not knowing how to deal with the bad ones,one employee recently made redundant was asked to keep quiet and paid off(some sort of compromise agreement,I think they got a lot to hide). They dont like confrontation, dont like disciplining employees, they just turn a blind eye and then try and con people out of pay, holidays. I was told that in 20 years, I was one of the only people to actually stand up to them and follow through with my actions, regarding contract changes and treatment of staff.

[becky2585]

I would strongly suggest seeing a solicitor here.

 

Whilst its a fairly straightforward unfair dismissal, you need to be smart about what you're claiming. You need to consider, for example, that a redundancy payment is equal to what you would get as a basic award for standard unfair dismissal. Plus, as no procedure was followed, you're better off arguing AGAINST redundancy, because the burden of proof is on the Respondent to show the reason behind the dismissal - not you. Which means that you could argue for a 25% uplift to any compensation awarded for the lack of procedure under the ACAS Code of Practice - but that doesn't apply to either redundancy or SOSR dismissals.

 

So financially you'd be better off if you submit a claim for unfair dismissal with the 25% uplift, and if they want to defend the claim on redundancy grounds, I'd leave that up to them...

[Woodi79]

Quick update: I wrote a letter to my former employer requesting statutory redundancy on the grounds they were claiming lack of work and didnt renew my contract. Gave them 7 days to reply, sent on the 1st Jan, with payment or reasons for non payment or I would take the matter further, ET..

 

Recieved letter today from some solicitor acting on their behalf, saying ' I act for **************. I have been passed your letter dated 1st January 2013 requesting statutory redundancy pay. I am currently taking instructions from my clients and I hope to come back to you shortly and no later than 16th of January 2013'.

 

So what to do now. Any advice on what they might be doing? I was going to start filling in forms to start an ET, if its accepted and represent myself. Don't know if I should wait and see what they doing or just plough ahead, any suggestions greatly appreciated!!

[mariefab]

You've got nothing to lose by waiting until 16th January.

From Becky's post #14, I'd suggest that the solicitor would be likely to conclude that making the redundancy payment would be the cheapest option for your former employer.

[Woodi79]

I understand, already spoke to a solicitor and they said its not worth their while with my case, but said I was doing everything right with regards my letters e.t.c. To be honest im drained, I have no previous 'law' experience and to date,have done everything of my own back and spent hours making sense of employment law and reading various cases. I just want an end to all this and what I am due, however I have nothing to lose by going to ET if I don't recieve what I believe im entitled to. Spoke to a another previous employee recently,who was let go few months before me by means of a 'mishandled' redundancy, ended up in this person having to sign a 'gagging order'/compromise agreement and cost the employer a lot. Thought they would learn, but obviously they still think they can treat people like dirt.

[MrHat]

All I can say is that you are in the right place with the CAG

[Woodi79]

Update: The 16th today and postman been and gone and no reply from their solicitor.

Now where to go from here. I have an email address of the woman who signed this solicitors letter, is it wise to email and ask why I have had no response or what is happening? Or do I send my ex-employer a letter stating that I am now going to commence filling in my ET forms?Any advice!

[SNALF]

Hi Woodi. I would suggest giving a reasonable amount of time before acting, but only a couple of extra days in case something is en route to you. If not received anything by the end of the week, I suggest emailing a polite request for a response as the date promised has come and gone. Send it by email for speed but put a copy in the post by recorded delivery to follow up. Can you also answer a couple of questions for me regarding how the contract ended? Were you invited to a formal meeting, with the right to be accompanied? Were others considered when reducing the workforce, i.e., were you in a 'pool' for selection? Did they give you the right to appeal against their decision? Were you considered or advised of any alternative employment within the same organisation? What notice were you given and did you work it or were you paid in lieu?

[Woodi79]

- No fomal meeting, just a quick ' we are not renewing your contract' in managers office.

- I was not aware of others being 'pooled', as far as I know they just didnt renew my contract for reasons of 'lack of work', I think that they are under the impression they could just let me go and I wouldn't say a word!

- Was not informed of any right to appeal.

- Its a small place, only about 20 employees, and I know there was no alternative work, to date no one else has been made redudnant since myself

- I got given 2 weeks notice, period covered the christmas week and the week before, which I didn't actually go in to work for, I sent my manager a letter explaining I couldn't as I had to sort things out andlook after an 18 month old due to the financial need to cancel the child minder after receiving the news.

[SNALF]

Thanks Woodi. They do seem to have misunderstood your rights as a fixed term employee Update us as soon as you hear back from their solicitor, or not as the case may be and I'll offer you some advice on progressing this.

[honeybee13]

Hello Woodi.

 

Bear in mind that there's a time limit for submitting an ET of a little under 3 months, someone clever will confirm exactly how many days.

 

My best, HB

[SNALF]

I'm not clever Honeybee haha, but I do know it's 1 day under three months but that's only because somebody must have told me at some point, not due to any personal intelligence

[Woodi79]

Thanks guys, honeybee I think it is three months minus 1 day, my contract ran out on the 28th December 2012 so got a bit of time to play with!Have already done a lot of homework and stated a few acts/legislations in various letters ive sent!

Employlaw, thanks for your advice/help and I will keep updating.I will give it a couple of days, Royal Mail not as fast as it used to be!! Ill post back hopefully before or over weekend.Cheers