Can my employer hold my pay because I do not agree to give my redundancy back?
Hello and thank you for your question, which I will be happy to assist you with. Please let me know why do they want you to give your redundancy back?
My contract was ending end of February and my boss asked me to renew until end of March and then enroll on a monthly contract. I accepted but asked that my redundancy be paid end of March. They paid my redundancy and in June they are saying that I have to give it back
but have they said why it should be paid back?
I asked them to send me a letter agreeing to give me back the money at the end of November (which is the new contract from June) but they say it will be if I am ,ade redundant by August
It's a matter of principle is what they say
it should have been payed back only once I have left
sorry, some slight technical issues, I am still here
ok I am still somewhat unclear as to why you were initially paid redundancy but then they ask for it back. So you were made redundant in March and paid redundancy. However, you have continued working since. Now are they saying that you should not have been paid redundancy because you are still in a job and not actually redundant?
yes, that's what they are saying
so the job you are in at present - is that not permanent?
no, it's a contact
until end of November started in June
I was on a contract before as well
between Feb and June, I was on rolling monthly contract
so not really any change in the way you worked?
and there was no break between contracts?
not really except that it has been modified sligthly
not sure what that means?
no, sorry, there was no break
ok thanks, let me get my answer ready please
ok, shall I stay online?
if you so wish, I won't be too long
oh yes one more question - were you offered the new contract before your employment under the old contract finished?
before my previous contract ended, we agreed that I would be on a monthly contract as far as they needed me
but in June they decided that my contract had to be renewed until end of NOv
and that's when they asked me to give back the money as well
sorry, it's complicated and not sure which details are important to you
that's ok thanks
If you were made redundant then you would have been entitled to a redundancy payment assuming you had at least 2 years of consecutive service at the time. However, if you were made an offer of suitable alternative employment before the termination of your employment, you would not be deemed to be redundant. In this case you appear to have been given the option of a new contract before your old employment terminated and as the terms were more or less the same it is likely to have amounted to suitable alternative employment. If that is what happened you will not technically be redundant and would have continued to be employed in a suitable alternative job and it means you would not have been entitled to a redundancy payment in the first place.
As to withholding your wages, the employer may only do so in certain circumstances, one of which is to recover a previous overpayment. So we need to look at whether 'wages' also include a redundancy payment. The answer is no and that is confirmed by section 27(2)(d) of the Employment Rights Act 1996 which specifically excludes " any payment referable to the worker’s redundancy".
So to conclude - you appear not to be entitled to the redundancy payment, assuming you have continued working there in a suitable alternative position so may be required to repay that to the employer. At the same time the employer is not entitled to withhold your wages because of this and doing so would amount to unlawful deduction of wages.
Ok, so in other words I have to give back the money but they have to take me to court to enforce it. One last question, if my contract terminates in November now, they have to pay me the redundancy right once I give it back? How long can they take to give it back?
simply put - yes. If you are properly made redundant in Nov, they should really pay it to you in their next pay run after you leave
Ok, thank you very much!
My pleasure. Unless you need further help, I would be grateful if you could please quickly click to rate the service I have provided you with before leaving and choose one of the following options: OK Service, Good Service or Excellent Service. If you feel the need to leave a lower rating, please reply to me first with any further questions you have. I will be happy to assist further and clarify anything you need me to. Thank you
Sure, sorry was just rereading your answer but I am totally satisfied. Have a great day!
many thanks and you too
Expert in UK Employment Law
Hello, Following our recent conversation, this is just a quick follow up to see how you are getting on and to check if my advice has been helpful in dealing with your query? I look forward to hearing from you.Regards, Ben
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