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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44867
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been given 4 week notice of redundancy. I wanted to

Customer Question

I have been given 4 week notice of redundancy.
I wanted to be sure I am acting in the correct way when seeking the outstanding payments I feel I am due.

In the meeting yesterday they told me my last day of employment would be 13th June and they require me to work my notice but on leaving they gave me a letter which states my last day of employment was 12th May and the payment in lieu of notice would be in my May salary. The MD also announced to the UK team yesterday lunchtime that I was no longer with the company.

When I questioned this with HR they sent me a revised letter saying that I was required to work my notice.

If I do work then am I deemed to accept the new letter?

I feel obliged to work if they are going to pay me what I am owed but don't feel inclined to do any more work if I am having to fight them on this right through my notice period.

Can you help with any advice I need to ensure they make the payments I feel I am due (holiday pay and bonus payment)?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

How long have you worked there for?

JACUSTOMER-xpq2dl96- :

It will 22 month

Ben Jones :

OK, thank you, please leave this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

JACUSTOMER-xpq2dl96- :

They am certain they selected me as I have been there less than 2 years.

JACUSTOMER-xpq2dl96- :

thank you

Ben Jones :

Just before I finalise my response can I just check if there is a clause in your contract that says you can be paid in lieu of notice on termination?

JACUSTOMER-xpq2dl96- :

Hello...sorry was away from my computer

JACUSTOMER-xpq2dl96- :

Yes it does say they reserve the right to bring the notice period forward by making a payment in lieu of notice.

Ben Jones :

Thank you. If there is such a clause in your contract then the employer is legally able to terminate your employment immediately by paying you the equivalent of your notice period (so the basic pay you would have received during that time) and your employment would cease straight away. You will not be entitled to any holidays for the notice period not would you be entitled to any bonuses that you may have accrued over that time.

If the employer does not terminate your employment in lieu of notice then they would ask you to work your notice period and during that time you would continue to be paid as normal, as well as continue to accrue holidays and may also be entitled to any bonus payment if it becomes payable during that time.

It would appear that the letter terminating your notice in lieu was issued in error and they actually would like you to work through your notice period. As such it is advisable that you do so because it is what the employer has requested. If you do not, there is a risk they could treat that as resignation and not pay you for the remainder of your notice period.

JACUSTOMER-xpq2dl96- :

So if they owe me a bonus from last year then what can I do if they refuse to pay it

JACUSTOMER-xpq2dl96- :

They should have paid me that bonus in February for the year ending 2013

JACUSTOMER-xpq2dl96- :

Unfortunately I had an incompetent boss who did not set me any objectives nor did he review my performance.

JACUSTOMER-xpq2dl96- :

He has since been dismissed

Ben Jones :

You can claim that this amounts to unlawful deduction of wages, something you are protected against and can make a claim in the employment tribunal

JACUSTOMER-xpq2dl96- :

ok thank you.

JACUSTOMER-xpq2dl96- :

They can of course say bonus is discretionary but in the absence of any reason for not paying me I must have a strong case....right?

Ben Jones :

It depends on the bonus. A common example is a bonus clause which is contractual but which gives the employer the discretion to decide whether it would be payable or not. This is also a situation which would cause most disputes between employee and employer. Whilst at first glance this may give the employer full discretion as to whether the bonus should be paid or not, this will not always be the case.

If the eligibility to a bonus is based on performance criteria then first of all if an employer is required to form an opinion of an employee's performance they must do so in good faith and be fair. Any other performance criteria would usually be determined based on qualitative data. Assuming the performance conditions have been met, an employer will rarely be able to refuse payment of the bonus as doing so would be acting in bad faith and considered unfair. So this is an example where the employer's discretion is removed once the relevant eligibility conditions have been satisfied.

It follows that even though a bonus clause may be described as being entirely at the employer's discretion, there are circumstances, mainly in performance-based eligibility, where this discretion is removed and the bonus would automatically become payable if the eligibility criteria have been met.

Ben Jones :

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

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