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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 12158
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, wondering if you can help me. I work for local government

Customer Question

Hi, wondering if you can help me. I work for local government - have agreed with employers to leave via bumping redundancy as I am moving to New Zealand. My job has been filled by another staff member who had been made redundant. He starts his job in a weeks time (whilst I am serving a 3 month notice period). I know that he is going to start his new employment (taking my post) but a week later has another interview for a job role.
Can this affect my redundancy plans? Or is the post now his and I am just serving my agreed notice period as an employee?
Any help would be gratefully appreciated.
Kind Regards
Mark Philps
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer :

Hi Ben, I have worked there for over 11 yrs now.

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

Your rights would depend on whether your redundancy has been confirmed and your employer has issued you with formal notice of redundancy, where you have started to serve your notice period. If that was the case then you would still be considered to work in your position until the end of the notice period but if the employer finds that they have a suitable alternative role for you or your old position becomes vacant again, they could offer these to you and expect you to take it up instead of being made redundant. The issue then becomes one of whether this offer was suitable and if you reject it, whether you did so reasonably.

The employer has an ongoing duty to offer you suitable alternative employment up to the end of your employment and if such an offer is seen as being reasonable and you unreasonably refuse to take it up, they can consider that you had resigned instead and refuse to offer you any redundancy. However, at the same time you can serve them with counter-notice to try and end your employment early before the end of your notice period and still be entitled to redundancy pay.

The law in this respect is that if an employee who has been issued with formal notice of redundancy may want to leave before their notice period expires, for example, because they have found a new job. In this case, the employee can give a written 'counter-notice' to their employer to terminate their 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 the employee's 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 the employee serves their counter-notice correctly and the employer either accepts it or does nothing, the employee's employment will terminate on the date specified in the counter-notice. The employee's entitlement to their statutory redundancy payment will not be affected.

However, if the employer refuses the employee's counter-notice, the employee can apply to an employment tribunal for an "appropriate payment" (that being the whole of the redundancy payment the employee would have been entitled to, or part of it). In deciding whether to award such a payment, the tribunal will consider whether it was reasonable to do so in the circumstances, given both the reasons the employee had for wishing to leave early and the reasons the employer had for requiring them to remain in employment until the expiry of their 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 the employee to remain and work their notice period, it is a situation that will work in the employee's favour.

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

Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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? I just need to know whether to close the question or not? Thanks

Customer :

Hi Ben, my apologies for taking so long to get back to you. Unfortunately a bout of flu has laid me low for the last week.

Customer :

Regarding whether it is reasonable for me to reject the offer of my 'old job'... Would it be deemed reasonable in law, for me to reject the offer due to the fact that I have already purchased my plane tickets and organised all other emigration requirements such as shipping etc to take place at the end of my notice period? (which if I acceted would leave me out of pocket by 1000's of pounds. My employers were aware that I had put in for voluntary redundancy due to emigration (which was accepted, as long as they could find somebody to replace me(which they have/did))
Your help would be gratefully appreciated.

Customer :

Sorry Ben, I also meant to add, that the chap has already started in my post and is being interviewed for a new job role after starting his new job (my old job). Does this make any difference?