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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45315
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was "seconded" into a more senior role same employer

Customer Question

I was "seconded" into a more senior role for the same employer at the same premises until May 2016
The whole office was under review at the time and it was already known that closure and redundancy were likely (regional restructuring) and I have now been given notice 2 weeks for the "secondment" paid at the higher rate of the senior role plus 7 weeks for redundancy (concurrent for the first 2 weeks) the last 5 weeks at my previous rate of pay.
My question - as raised by an advisor at Acas - is - Am I entitled to receive my higher rate of pay for my entire 7weeks notice?
Was my secondment actually a secondment or was it a new role which qualifies me for an enhanced redundancy settlement?
For clarification, when my secondment ends, I will not be returning to work in my old post - I will be on gardening leave until my redundancy notice has been spent.
Submitted: 10 months ago.
Category: Law
Expert:  Ben Jones replied 10 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What was the purpose of the secondment, was it agreed that this would be something you would be moved to in order to try and avoid redundancy? Please note I am in tribunal today so may not be able to repsond immediately, thanks
Customer: replied 10 months ago.
No, (not entirely) the secondment was made after we were aware of the business review and the likelihood of the office being closed around 31/03/2016.
The secondment was made because they desperately needed to fill the senior role - However, it was to be for the period up to the end of May 2016.
This would have implied an extra two months service before redundancy - however, this perceived advantage has been lost as the terms of the secondment allow two weeks notice to be given (to leave the senior role and return to the previous post) which is what I received on Friday last week.
My redundancy notice has been given on terms that would apply had I never taken the secondment - ACAS have questioned whether this is lawful? (they believe that I may be entitled to be paid the full 7 weeks notice at the same rate I've been paid during my time in the senior role)
This also raises the question about my redundancy package? - I'm wondering now, if my promotion to the senior role was classed as a secondment - not because it was truthfully a secondment but because calling it such would save my employer money when calculating my redundancy package?
Expert:  Ben Jones replied 10 months ago.
Was there a specific notice period stipulated for terminating the secondment?
Customer: replied 10 months ago.
And to recap - once my two weeks notice is served to leave the senior role, I will be leaving the company as my previous post will no longer exist (I will be paid at the rate which applied to that previous role for the rest of the redundancy notice & the redundancy package paid will be based on the lower salary that applies to my previous role)
Customer: replied 10 months ago.
Yes, two weeks notice was one of the terms of the secondment
Customer: replied 10 months ago.
Btw, I have 7yrs service
Expert:  Ben Jones replied 10 months ago.
Thanks for your patience. In the circumstances you would not really have rights to demand the higher rate of pay for the duration of the notice period. You would have been entitled t it had you remained in that position for the notice period, however if they exercised their right to terminate the secondment early they would give you the 2 weeks’ notice, you would only be paid for those 2 weeks at the higher rate, returning to your normal pay afterwards. You question whether this was a secondment or not, but you were not moved to the role after being placed under formal notice of redundancy and following consultation. It does not imply it was a permanent move, the office was likely to close anyway, this move was for a limited period of time and it could have been terminated early if necessary. I do not see this being as a permanent move. Obviously ACAS would look at giving you the most favourable option to try and get you the best outcome but legally it may not be possible to force them to pay you the higher rate for the full notice period or to get the enhanced redundancy. This is basic contract law here – there was a position for a fixed period, which had the right to be terminated early with a specific notice period – it is this notice period which really affects your rights here – without it you could have claimed the higher rates. I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you
Customer: replied 10 months ago.
Thank you for your candor Ben. I believed that the employer had probably got things in order but ACAS queried it so it seemed worth following up.Before I sign off, can I confirm that you are saying that the fact that my original role is no longer available makes no difference to the nature of my secondment or the redundancy package?
I.e. As long as the contract is in order - which it probably is - the employer is entitled to send me on gardening leave at my previous rate of pay for the duration of the notice period and pay redundancy on my service based on my lower pay prior to the secondment.Regards
Gary
Expert:  Ben Jones replied 10 months ago.
You could be seconded even if your current role ceases to exist. There is no guarantee that you would be allowed to return to your original post in any event – this is something which the employer can guarantee if necessary but they do not have to. The fact is that this was a temporary transfer to another position which is what a secondment is in reality. So you may be sent on secondment ad the original role becomes redundant in the meantime. You would then be being made redundant from that position, not the secondment one. If the secondment agreement did not have a clause for early termination, you can expect to remain in the seconded position during your notice period but would not be entitled to enhanced redundancy if that role entitled you to it, because you are not being made redundant from the seconded position but the original one. Similarly, if there was a clause allowing for early termination they could recall you, ay you the notice and then any terms and entitlement after that would be subject to the original role’s. hope this clarifies?
Customer: replied 10 months ago.
Yes, I understand - you've been very helpful and saved what might have been a bit of a goose chase.
Thank you
Gary
Expert:  Ben Jones replied 10 months ago.
You are welcome, all the best
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45315
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 10 months ago.
Apologies for not leaving a tip - it's no reflection on your answer & I hope that you have received the lions share of the £38 paid? (I wasn't even aware that tipping was involved?)
But you got 5* :-)
Expert:  Ben Jones replied 10 months ago.
Please do not worry about that, it is entirely voluntary and thank you for at least considering it.

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