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taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6264
Experience:  15 years experience of advising on employment law matters
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I have been told my role is at risk and will be served notice

Customer Question

I have been told my role is at risk and will be served notice on 8th Jan 2014. I was TUPE transferred from my last employer to my current employer in 2010. In my TUPE letter I was informed that my redundancy terms were non-contractual but were being protected "for a minimum of 12 months". My letter notifying me of my iminent redundancy states that I am elligible only to Statutory Redundancy pay. When I questioned this I was told that these terms "will have expired" because it has been 3 years since the TUPE transfer. I have asked on what date my terms and conditions changed and had this response: "the enhanced redundancy payment offered by XXXXX was not a contractual term and condition of employment and so was not protected by the TUPE legislation. This was confirmed in the letter issued to you by us in October 2010 in which we agreed to honour this discretionary benefit for a period of 12 months from the date of the transfer. Beyond that period i.e. 3rd October 2011 there was no commitment from hyphen to honour such payments." The letter states "a minimum of 12 months" and I have never been informed that the terms had changed or expired.

Do I have a case to claim the enhanced redundancy terms?
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.

taratill : Hello my name is Jenny and I am happy to help you today, can you tell me if your previous employer always paid enhanced redundancy?
JACUSTOMER-1q9v4bnt- :

Yes my previous employer in 2010 paid out 4 weeks pay for each year service, this was recently reduced to 2 weeks on 1st Dec 2013. Let me know if you require any further info.

taratill : Hello can you tell me on what basis your current employer said this was non - contractual? Was it a policy in a staff handbook which was specifically stated as being non contractual?
JACUSTOMER-1q9v4bnt- :

Hi Tara, the current employer stated in my "welcome letter" confirming my TUPE transfer that the redundancy terms are non-contractual. My previous employer has the policy wording in an online HR handbook it is not a term/condition that was specified in my original contract of employment. It is a policy that all redundancy leavers would get this enhanced payment. Hope this helps?

taratill : Yes it does. I will now prepare an answer for you. You will receive an email
taratill : When the answer is complete
JACUSTOMER-1q9v4bnt- :

great thanks

taratill : Sorry for the slight delay in getting back to you. Can I ask one further question? Do you happen to have a copy of the wording of the original redundancy policy. Particularly the part that says that it was non contractual and could be changed at any time. If you do not then don't worry I can still advise in more general terms.
JACUSTOMER-1q9v4bnt- :

I don't have the wording as this was changed earlier this year. I can get this wording to you on Monday morning if this helps?

JACUSTOMER-1q9v4bnt- :

The new wording does say that the policy can be changed

JACUSTOMER-1q9v4bnt- :

Hi there, did you manage to provide a response I haven't received an email yet? Thanks

taratill : Hello there, the position on this is slightly unclear and will turn on the facts. If a policy can be changed at any point then the fact that there has been a tupe transfer does not put you in a better position than you would have been in before the transfer occured. This means that the policy (and the right of the employer to change it would transfer) and the fact that the subsequent employer has changed it is unlikely to be found to be contrary to TUPE laws unfortuantely.
taratill : However if you can demonstrate that through custom and practice the employer always paid redundancy pay and the wording was used on all policies then you may be able to argue that it is a contractual right and tupe does apply.
taratill : There is no harm, either way, in raising a grievance about this stating that it is in breach of contract and contrary to TUPE. It may be that the employer will make a payment to avoid a potential claim.
taratill : If you have any further questions about this please do ask. If i have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
JACUSTOMER-1q9v4bnt- :

Hi Jenny, I'm a little unclear still. Did my current employer have to inform me of the change in policy? They are saying they only had to preserve the TUPE terms for 12 months so after 2011 I have no claim to any previous redundancy policy. Is this correct or can I say that because I wasn't informed I should be on my protected terms still?

taratill : Hi I'm sorry that I wasn't clear on that point. You should have been I informed in advance of any policy change. The policy should not be changed retrospectively. You therefore can claim on that basis.
taratill : i would suggest you first raise a grievance to say that they are in breach of contract by failing to pay you and notify you of the change in terms. If you are not paid you can clsim
taratill : claimclaim claim breach of contract either in the employment tribunal or the county court.
taratill : All the best with this. Please do ask if you have any further questions.
taratill :

Hello, I'm not sure if you saw my last response. Please let me know if you need any further information about this/

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