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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38579
Experience:  Expert in UK Employment Law
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Hi I transferred internally with the firm in Sep-11 but have

Resolved Question:

Hi
I transferred internally with the firm in Sep-11 but have worked with the same firm for over 3.5 years now and my recent role was put at risk without serving any notice of redundancy. I was offered another temporary assignment in another team, same location however the nature of the role is different and not my area of expertise as it was before. Also, in my previous role I was on the platform for promotion which was not offered in the new role. What are my rights for unfair dismissal in this case, as my old role was removed without any notice?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please clarify what is the reason you are at risk of redundancy now? What reason(s) is the employer relying on to make you redundant?

Customer:

My role is no longer required because of cost cutting measures. Also this was a promotion role this year which has been cut down and left me no choice but to look for another role. I accepted another role I was offered in the same department on a temporary basis however it requires expertise in different asset class not the same as my previous role. Also, this new role is not a for promotion role. Btw, this relates to middle office function in a bank and I transferred from outside UK less than 2 years ago, however been employed by the same firm for 4 years. I do not have anything in writing and if I have to claim redundancy pay what would my rights be?

Ben Jones :

ok so to clarify, your previous role was made redundant and as an alternative to redundancy you have been offered this new role but you do not believe it is suitable, is this correct?

Customer:

yes that's correct but does the suitability of the new role depend on career prospects for the employee or it only depends on the nature of the job alone if its in the same location, pay grade? Also, what is the usual redundancy offer made by banks?

Ben Jones :

When a redundancy situation arises, an employer has a duty to consider and offer the affected employees any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in employment rather than make them redundant.


 


If an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.


 


If the offer is considered unsuitable and the employee refuses it, they will still keep their entitlement to redundancy pay. However, if an offer of SAE has been made and the employee unreasonably refuses it, they would lose their entitlement to redundancy pay.


 


The factors that would usually make an offer unsuitable or a refusal reasonable are as follows:



  • Job content and status – e.g. drop in status or level, substantial differences in duties, etc.;

  • Pay and other benefits – e.g. significant drop in earnings, including basic pay, bonuses, overtime, sick pay, holiday entitlement, etc.;

  • Working hours – e.g. change in shift pattern, removal of overtime, extension/reduction of working hours;

  • Change of workplace – e.g. if a place of work changes and the employee’s personal circumstances make it unreasonable for them to travel to their new place of work.

  • Job prospects – e.g. going from permanent to temporary work, changing to being self-employed or being employed on a fixed-term contract.


 


If the employer makes an offer of alternative employment, where the terms and conditions differ from their current ones, the employee has the right to a 4-week trial period in that job, which can be extended by mutual consent. If during or immediately after the trial period they decide against taking the job then they should tell their employer straight away. This will not affect their employment rights, including their right to receive statutory redundancy pay.


 


In summary, there are a number of factors, as explained above, which would make an alternative offer unsuitable, in which case it can be rejected and the employee's redundancy rights would remain unaffected.


 


As to the offer of redundancy, there is no such thing as a 'usual' offer. Each employer must pay at least the statutory minimum amount. Any enhancements on top of that are entirely at their discretion, subject to any enhanced redundancy clause contained in your contract.

Customer:

So, in case I refuse an offer do I need to serve 4-week period to claim redundancy pay? What happens in case I find a job externally during the 4-week period, does that make me lose the entitlement to redundancy pay?

Customer:

Ok, but do i need to serve the full 4-week period in case I refuse the offer or if I find another job externally? Does that make me lose the redundancy pay rights?

Customer:

Ok, but do i need to serve the full 4-week period in case I refuse the offer or if I find another job externally? Does that make me lose the redundancy pay rights? Also the minimum pay is 1 week for each year served, however banks tend to pay more 'generally'. Do you know why would that be the case? Is it generally to avoid lawsuits? Also, let's say if I don't get a pay rise in the year I was made redundant basically given that I was going to be made redundant, should that be factored into redundancy pay estimate? What factors affect any other enhancement if not stated in the contract explicitly? thanks

Ben Jones : You would still be expected to serve your notice period as normal, although if it is in an unsuitable job then you do not have to and can ask to either work it in your old job or a suitable job. If you have found a new job and wish to leave earlier, then you can ask to be released by your employer and should not lose your entitlement to redundancy pay. Banks may generally pay more but that is more likely due to the corporate culture rather than avoiding lawsuits, you can't bring in a lawsuit if you are paid the minimum statutory redundancy pay when that is all you are entitled to. The pay rise issue depends on whether it was in any way guaranteed. If it was and it was not implemented then that could be a breach of contract and the pay you should have received should be taken into account when calculating your redundancy pay. What could often affect enhanced redundancy payments is if you can show there has been a consistent history in the company of paying enhanced redundancies then you can claim it has become custom and practice and as such you should be entitled to the same
Customer:

thanks, XXXXX XXXXX if I find another job and ask to be released then the only way I will lose my redundancy pay if I have to reject a suitable offer in the process?

Ben Jones :

that is correct. An employee who has been given 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 written counter-notice to their employer to terminate their employment on an earlier date. This is a right given under section 136(3), Employment Rights Act 1996.


 


If the employee serves counter-notice as required above and the employer either accepts this notice or does nothing, the employee will be dismissed on the date specified in their counter-notice (in other words they will finish early as they had requested) and will still be entitled to receive a statutory redundancy payment.

However, if the employer refuses the employee's request, the employee will be entitled to 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 order such a payment, the tribunal will consider whether it was reasonable for the employee to receive a payment given both the reasons the employee had for wishing to leave their employment early and the reasons the employer had for requiring them to remain until the expiry of their notice period.


 

Ben Jones :

I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Ben Jones, Solicitor
Satisfied Customers: 38579
Experience: Expert in UK Employment Law
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