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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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I have been advised that my part-time marketing role is at

Resolved Question:

I have been advised that my part-time marketing role is at risk of redundancy. In the same letter, they describe a full-time marketing role at more pay than I earn, ideally to be located 68 miles from where I work now, that they will create and hire for soon. The letter says that no statutory redundancy is payable because my redundancy is due to restructure but that as a gesture of good faith they will pay it. Marketing has only ever been a part-time function in the company, the new job is exactly in my area of expertise and skills, and most company employees marketing supports are not in that location 68 miles away. I am looking to inform a negotiation position. Can they legally withhold that statutory redundancy payment? Is this new role suitable alternative employment if I turn it down on location grounds? Am I entitled to a trial in the new role?
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 assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

Customer:

10 years. I was TUPEd in Dec 2013 to a company run by insiders who bought assets of my former employer out of administration. I have only worked part-time since last March, previously had a much bigger role in the company (scope included marketing within that so marketing still only ever a part-time role on my plate) and stepped aside from that by mutual agreement in March 2012.

Ben Jones :

Thanks for your patience. What the employer has said about the redundancy not being payable because this is due to a restructure is nonsense. A restructure which results in redundancy will still be a redundancy and you would be entitled to a redundancy payment, regardless of what the reasons behind it were. An employer cannot just hide behind a 'restructure' in order to try and avoid paying a redundancy payment. If they refuse to pay you what you are due then you can easily take them to an employment tribunal to try and recover this money.


 


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.


 


So the extra 68 miles that you would have to travel can certainly make this offer unsuitable.


 


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.

Ben Jones, Solicitor
Satisfied Customers: 38673
Experience: Expert in UK Employment Law
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