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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My company was taken over in September 2011, I have worked

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My company was taken over in September 2011, I have worked at the same company since 1985. in 17 waves of redundancies Enhanced packages were paid & compromise agreements signed on every occasion.
In a works committee meeting on 01/02/12 after the 1st wave of redundancies under the new owners the head of HR stated that there were no current plans to
change the package & that the committee would be consulted if this were to occur.
Since the takeover more redundancies have been made, most recently Nov 2013, again with the normal Enhanced payout. On July 17th A company announcement was made stating that from Jan 1st 2015 Statutory terms will be offered & any further payments will be at the companys discretion on a case by case.
A petition was levied as to our objection. We were then held to face to face meetings in order to ascertain if we were pressurised into signing the petition & if we were prepared to have our name removed.
We then received a letter on 25/09 reiterating the change to redundancy terms & in addition an attachment was included that must be sent back to HR confirming my agreement to the change by 30/09. If I don`t the company may begin a formal consultation process with me.
The works elected representatives have not been consulted at any stage nor the committee convened.
What are my rights? Do I have to sign the agreement
Submitted: 2 years ago.
Category: 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. have you signed the agrement

Customer:

Hello Ben, I have signed the agreement

Customer:

Do you need any more info from me?

Ben Jones :

no that's ok leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

Sorry Ben I have not signed the agreement the company asked me to, was thinking you were referring to the website disclaimer agreement.

Customer:

The agreement has to be signed & returned by tomorrow. I have already tolfd the company that I will not sign until I have sought legal advice on this.

Customer:

Ben, I have not signed the agreement, however others have, if they should not have signed what can they do?

Ben Jones :

Thanks for your patience. Your rights will depend on what your contract says about your redundancy entitlement. If you had an old contract from the previous employer then that would still apply and the old terms would have transferred over to the current employer. So if that contract did not contain any provisions for an enhanced redundancy package you would only be entitled to the minimum statutory entitlement. The employer may have decided to offer either discretionary enhanced packages to others or this may have been due to their own contractual entitlement but that does not give you an automatic right to receive the same package and each case can be dealt with individually. As far as the law is concerned, you can only rely on an enhanced package if your contract allows it and if it is silent on that point then you will legally only be entitled to the statutory minimum redundancy pay.

Whilst you cannot be forced to sign the agreement in question, it would not prevent the employer from continuing with any proposed redundancy procedure or identifying you as being at risk of redundancy. Similarly if you are selected for redundancy they can still only pay you what you are contractually entitled to, whether that is enhanced pay or just the minimum. Of course they would still need to ensure that a fair redundancy procedure is followed but as the redundancies you may be involved with have not yet started, we cannot really comment on whether such a procedure has been followed properly or not.

Saying that, there is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This 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.


Customer:

Ben, many thanks for your detailed response & for all your help on this matter.

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