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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My company is going through consultation but will close (a

Resolved Question:

My company is going through consultation but will close (a solvent closure).
It is expected that on 12th September all the staff (more than 20, less than 99) will be made redundant.
I work for the FD who has advised that I will be the exception, I will be required to close down the business and will be expected to stay until that is done. Possibly as long as the end of December.
My questions are as follows:
1. Can I push to leave with everyone else? (I may have a permanent job sorted)
2. If I can't, is the company able to say I've worked my 3 months notice? (When we reach the year end)
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

I have worked there over 9 years, start date was 10/01/2005.

Ben Jones :

Hi, sorry I was offline when you replied this morning. To answer your queries:



  1. Whilst there are circumstances when you can try and push to leave earlier than the expiration of your notice period, that will only work if certain conditions are met. If your employer does not issue you with a formal notice of redundancy and asks you to continue working for them for as long as necessary and to continue under your existing terms and conditions, then you cannot ask them to release you early. You can resign at any time but that will not be a redundancy and you will lose out on your redundancy payment.


However, if you are issued with formal notice of redundancy then you have the option of asking them to allow you to leave before your notice period expires, for example, because you have found a new job. In this case, you can give a written 'counter-notice' to your employer to terminate your employment on an earlier date. This is a right given under section 136(3) of the Employment Rights Act 1996.

For the counter-notice to be legally valid it must be submitted within a specific time period:



  • If there is no contract of employment and, in turn, no contractual notice period, the request must be submitted within your statutory notice period (1 week for every full year of service) - for example if an employee with 4 years' service is made redundant and the employer issues them with their 4 week notice period, the request must be made within these 4 weeks

  • If there is a contractual notice period which has been issued by the employer - within that notice period;


If you serve their counter-notice correctly and the employer either accepts it or does nothing, your employment will terminate on the date specified in the counter-notice. Your entitlement to their statutory redundancy payment will not be affected.

However, if the employer refuses your counter-notice, you can apply to an employment tribunal for an "appropriate payment" (that being the whole of the redundancy payment you would have been entitled to, or part of it). In deciding whether to award such a payment, the tribunal will you employee had for wishing to leave early and the reasons the employer had for requiring you to remain in employment until the expiry of your notice period. For example, if the reason for the counter notice was to start a new job and mitigate the effects of redundancy and the current employer did not urgently require you to remain and work your notice period, it is a situation that will work in your favour.



  1. If you are required to remain until the end of the year, then you can only claim that you have served your notice period before that or until then if your employer had previously issued you with a formal notice of redundancy, advising you that your job has been made redundant and given you the notice period you are entitled to. If they have simply left you working until then and not issued you with notice of redundancy, then your notice period would still need to be given to you after that time. If the company is still operational then you could be expected to stay and work until the end of the notice period or of they are not, then you should be paid in lieu of notice.


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thank you, ***** ***** the answers I expected. I

was hoping there might be a way of

Customer:

Oops, I meant to say, a way of going when everyone else does.


Ben Jones :

Sadly not, you are all employed under your own individual contracts - your employer could decide to make some of you redundant at one point and others at another - there is certainly no rule that all must go at once. Some could be retained for longer than others and the only rules that would help you to leave early are the ones mentioned above

Customer:

OK, thanks


Ben Jones :

you are welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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