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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 52081
Experience:  Qualified Solicitor
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In 2015 I had been with my employer for 15 years and over a

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Hi,
In 2015 I had been with my employer for 15 years and over a period of time my job role had grown from being responsible for 1 section and 5 staff to 7 sections and 70+ staff. As my part of the business was not core to the main business of the company and times were difficult they decided to outsource 6 of these areas.
I was expecting a regarding...this did not occur... about 6 months later I was made redundant in March 2015 along with about 17 other staff from other areas of the employer (nothing to do with my sections). Most left within a few weeks... I was told I could not leave until the September (due to business commitments they required me to see through). I was given a letter of redundancy and went through all the correct meetings etc...all procedures were followed.
Before the end of September 2015  I was asked to stay on for a few months until they recruited a suitable person into the new role (it was offered to me but it was at 50% of my then salary). I agreed.  They could not find a suitable candidate.
A few months later they moved my redundancy date on by a further 6 months...and asked me to stay on (at this stage they reduced my salary by 1/3rd). I agreed.
This moving on of my redundancy date has been moved on regularly...latest date is 31st December 2017 with the required letters etc.
Today they offered to rescind the redundancy and for me to stay in post.
This means I can keep my job but not receive the redundancy payment.
Can they do this?
What should I do?   I am 64
Thanks
Eileen

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Have you been consulted, on each occasion, prior to your redundancy date being changed and have you willingly agreed each time?

Customer: replied 1 year ago.
Customer: replied 1 year ago.
Nothing to add really
Customer: replied 1 year ago.
Ben..are you still there?

Hi there. Apologies for the slight delay and thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Thanks for your patience. What the employer has done is not actually illegal, even if it appears to be unfair or immoral in a way. Once they have decided that an employee is to be made redundant they have a duty to offer them suitable alternative employment to keep them in a job and avoid the need for redundancy. This is a duty which is ongoing and lasts until their employment is terminated. In this case they still had a need for you so they basically left you in a job, which you agreed to remain in. If they now have confirmed that this role will no longer be made redundant and have offered it to you, then you would be expected to remain in it, unless you can show that it was not a reasonable/suitable alternative. This would depend on what you did before the potential redundancy and what you have been offered now. If there is a large change between the two then you may potentially argue that what you are being offered now is unsuitable, reject it and opt for redundancy instead.

However, if it is the same or largely similar role, then you cannot really argue that and would be expected to remain in it without any redundancy. After all, redundancy is only payable if you are actually being made redundant and if you are staying in employment then that is not the case.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the factors which determine the suitability of alternative employment. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 1 year ago.
Hi Ben,Thanks for your response...given the time scales...27 months "on death row"...as in ....since I was issued with my first notice of redundancy...during which time I have...according to my line manager acted with amazing professionalism and in my role of business development ..done exactly that... built the business, kept the many clients on board, brought in numerous new clients and "been amazing".. do I have any grounds for financial recompense...
If I accept the rescinding of the redundancy I am over £12k worse off with no redundancy pay...and given I am already 64 not that many years "left in the pot" to work.

Legally there are no grounds for compensation I'm afraid. You were kept in a job, you were paid accordingly and have remained here now. You have not suffered losses. What you could have done, for example if you had reasons to leave based on the fat you were under notice of redundancy, as to serve counter-notice on the employer asking t be terminated early and still keep you redundancy money. But now that our job is confirmed permanently and you are taken off redundancy notice that is no longer an option. SO whilst this may be a lost opportunity in terms of being made redundant, what the law would look at is whether you are still in your job and as the answer to that is yes, then there is no further obligation on the employer to go through redundancy or offer compensation, because as mentioned redundancy is only there to compensate someone for the loss of their job. Hope this clarifies?

Customer: replied 1 year ago.
Thanks Ben.I understand now that I have no legal grounds for compensation. I also know...given the rescinding of the redundancy today that my employer wants to keep me in the post, feels I do a good job and "needs" me.Your comment of " even if it appears to be unfair or immoral in a way" is interesting. Should I address this with them? I am single..... as in divorced (though now widowed in the eyes of the Catholic Church).... I have 3 sons ... a large mortgage..as my ex husband defaulted on the mortgage and the bailiffs came in and took the property back ...and I had to "start again" at the age of 40+ ....I have been under stress for the 27 months of my redundancy and have a stomach ulcer as a result.Should I suggest they look to compensate my lack of redundancy payment over a period of time with an increase in salary/ and or commission on income over budget?Can you suggest any other alternative routes so that I am not affected financially ...I had to re-mortgage the property when made redundant and was counting on the redundancy to make amends.Eileen

You have nothing stopping you from addressing this with hem but the issue with raising arguments on moral or fairness grounds is that you are only doing so in the hope they will use their discretion to do something to remedy the situation. It does not give you any legal rights. SO whatever you raise with them it would be entirely down to them to decide whether to offer any compensation or not. The problem is that until your employment terminates, redundancy is never a given as things can change all the way up to your last day and they can ask you to remain in post, unless you had given them counter notice during the notice period to leave early.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Hope this clarifies?

Customer: replied 1 year ago.
Hi,Thanks... I actually want to stay in my post...I really enjoy it and do it well (why else would they keep me on!)...My real challenge is I am £12k+ down through lack of the redundancy pay off... which was part of my negotiation wit the mortgage company when first made redundant...though I now I have security of employment...though nowadays that means very little!I guess I want acknowledgment and recompense for my distress over the last 27 months.Eileen

Yes I understand but legally you cannot get anything unfortunately, I am afraid it was your own choice to do this before officially being made redundant - it would have been a risk if you did it before termination of employment because there would never have been a guarantee the redundancy would proceed to termination

Customer: replied 1 year ago.
I,No...I negotiated this when I was first made redundant in March 2015....which was the date on my first redundancy letter!

you were not made redundant though you continued working there, redundancy is when your employment actually terminates which never happened

Customer: replied 1 year ago.
Thank youGood night

You are welcome and good night

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