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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47881
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am being made redundant after 16 years service from Royal

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I am being made redundant after 16 years service from Royal Dutch Shell. Having spoken to many of my colleagues and a few ex employees the understanding appears to be severance compensation is one month per years service. While not contractual its appears to be expected generally. However my package is less than a year. Do I have any recourse. My company is simply telling me the calculation is confidential and is in line with company guidelines. They are refusing to discuss in any shape of form. Can they keep me in the dark ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello has this severance always been paid and has it been previously communicated publically?
Customer: replied 1 year ago.
The company has not formally published any compensation calculation details other than statutory. So the one month per year is a general understanding, nothing in writing. They always pay compensation above statutory though.
Expert:  Ben Jones replied 1 year ago.
To be entitled to this kind of settlement you must be able to show that you were contractually entitled to it. Your contract does not specifically deal with it so you would need to show that it had somehow become an implied contractual term. In the circumstances, the most likely way for that to have happened would have been through custom and practice. This is a principle in employment law where terms may become implied into an employment contract and makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers. The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify. Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:· On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract· Whether the terms are always the same - large differences will make the argument they had become implied weaker· The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal, although you are free to raise a grievance with the employer first to try and deal with this internally. This is your basic legal position. I have more detailed advice for you in terms of the options you have should the employer refuse to apply these terms, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. So as mentioned you will only be able to claim the enhanced payments if you can show that they had become an implied contractual term. This is really something which only a tribunal can decide. So if you are made redundant and not paid the enhanced payments and you believe that based on what I posted earlier you have a strong case to claim this, you can consider taking the matter to tribunal. You have 3 months from dismissal to do so. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.