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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was made redundant from a job at a fire service, on 31 October

Resolved Question:

I was made redundant from a job at a fire service, on 31 October 2013. I received redundancy money. A job with a local authority was finally confirmed on 1 November, and I started work with them on 4 November, without a contract. The contract has arrived now and continuity of service is not confirmed. My former employers have demanded the redundancy money back under the modification order. Do I have to pay it back?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Are you now working for a different employer?

Customer:

Hi yes, it is a local authority

Ben Jones :

Hi sorry my connection dropped earlier, just getting my response ready for you now

Ben Jones :

The Modification Order applies to preserve continuous service of employees of local government employers, where they are made redundant from one organisation, but then go on to join another qualifying employer within a specified period of time.


 


In relation to redundancy payments, if you are re-employed by a qualifying organisation within 4 weeks of your redundancy you would be deemed to have continuous service and the redundancy would not stand, meaning you would have to pay your redundancy payment back.


 


So the key is with the timings - did your new job start within 4 weeks of your old employment terminating? If your old employment terminated on 31 October, then as long as your new job started after the 28 November, you would not be covered by the Modification Order and would not have to repay your redundancy payment back.

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

Customer:

Hi, the new job started on 4th November, so under your response i will need to repay it. but so far the new organisation haven't agreed to honour the continuous service. So I seem to be losing out all ways. I had read somewhere (a union website) that if the offer of employment offer was after the contract ended then i didnt have to, even if it was within the 4 weeks period. The problem is going to be that after 4 years without a pay increase i was in debt, so used the money believing I was entitled to it. I guess I will have to try and negotiate a repayment deal.

Ben Jones :

whether they confirm the continuous service or not, this is determined by law, so if it comes to it in the future, what they say now may not have any legal bearing anyway.

Ben Jones :

In terms of the new job, to qualify it must be taken in pursuance of an offer made to you before the end of your last employment

Ben Jones :

So when you say the job was confirmed on 1 Nov does that mean the offer was made then?

Ben Jones :

the relevant legislation is here:

http://www.legislation.gov.uk/ukpga/1996/18/section/138

Customer:

The initial offer was made in July, but then the people who interviewed me and offered me the job left. I did get an initial letter, saying it was subject to the usual references, medical clearance dbs check. The letter clealy stated not to resign until i received a contract. I didnt hear anything for weeks, tried contacting them without success, Apparently service and team restructuring took place a new manager was appointed. I met with the manager in October, and we discussed a start date. My contract with the fire service terminated on 31 October. I still hadn't heard anything by 1st November, from the new employer, nor had I received the contract. I managed to get in touch with the manager to see if they still required me and was told to start on Monday 4th November. I received the contract, dated 21 November last week, backdated to 4 November.

Ben Jones :

The key is when did you receive the offer for the new job - that would be a factual issue

Ben Jones :

there is evidence which suggests that this happened before you left although you can aounter-argue that the actual offer which you relied on to start the job was made after you had left

Customer:

It depends on whether the offer would be deemed to be the original offer letter that stated it was a conditional offer and not binding until a contract was issued. Or the letter sent with the contract, which I didn't get until last week. I genuinely didn't know if I had a job or not and half expected to be told that the job didn't exist. I will have to try and argue it with them but don't fancy my chances, the fire service I worked for were not adverse to acting like bullies.

Ben Jones :

an offer is an offer, conditional or not, but to be honest whether the offer was issued before or after you left is something only a tribunal can determine

Customer:

Ok thanks.

Ben Jones :

at this stage you need to dispute this with the argument I mentioned, if they request that you repay the redundancy you can refuse and it would then be up to them to try and pursue this if they want, they may not, they may let the matter go

Customer:

Thank you for your advice, I will write to them and see how it goes!

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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