Redundancy Entitlement Query

[cottonbud]

I have worked at my present job since March 2010, the business is closing in October and a new employer at a new location has said they will be prepared to take me on at the new location and will be giving me a new contract.I have been told that as its a "new" contract and not a "continuation" of a contract (the hours will be different) that i am entitled to redundancy pay from my old employer. Could someone please clarify that this is actually the case.

[alavahalf]

Having faced redundancy 3 times in 5 years. The first place to look is in your existing contract.

[Buenchico]

From the basic information that you've provided, it does seem that you've been made redundant from the first company and you're now joining the second company as a new employee.

In which case, the good news is that you're entitled to a redundancy payment from the first employer (or from the National Insurance fund if the business is closing because that employer is insolvent). See here
https://www.gov.uk/redundant-your-rights/redundancy-pay
and, if relevant, here:
https://www.gov.uk/your-rights-if-your-employer-is-insolvent/overview

The bad news is that the TUPE rules won't apply
https://www.gov.uk/transfers-takeovers/overview
so you'll lose rights built up under your original employment. (e.g. you'll have to work for two years with the new firm before being protected against unfair dismissal).

If in doubt, phone the ACAS helpline:
http://www.acas.org.uk/helpline

[Peter Pedant]

agree BC
Clever Chris

I think it is clear the first employer has made coton/b redundant
and the second employer is er the 2nd and continuity rules do not apply

the only thing I can think of that the first employer having 'placed' the employee somewhere else now thinks he owes her nothing

I agree with BC that he does

[fiction-factory]

I generally agree with the above although I'm not sure about PP's point about not owing her nothing- it may just be a one-off appointment of a few staff rather than a large scale disguised transfer of staff

[fiction-factory]

If you get redundancy I think it has to be a clean break and the employee has a choice about whether to accept a new offer and the employee has a right to choose the terms- otherwise it's a TUPE rather than redundancy I think

[cottonbud]

Many thanks to all of you, i had never heard of TUPE, i can't see it being relevant in this case(or hoping it isnt) as, the business isnt insolvent and also the continuity of employment won't be maintained as the hours will differ and there the new employer has stated clearly there will be a completely new contract. I am so grateful for the ACAS advice from Buenchico and PP has got it spot on, the employer thinks they owe me nothing as they have already told me that, they said its up to the new employer to pay "everything". I think they are hoping i will just agree as they are a business owner and know the law and im merely an employee. They also stated that the new employer will need to pay any annual leave not yet taken, but i am under the understanding that my old employer is in fact liable to pay for leave up to the date of the closure. Also FF's point of a clean break, to me it is, i think my employer thinks its just a continuation of everything, which my new employer has made clear it isnt, he stated its a new start, new contract, new hours and when i mentioned about redundancy the new employer said "if you are going to cause trouble i don't want you !!!" i was horrified, i just want to know my rights and anyone in the same position would also want their legal requirement. I hope i can get it sorted, but ive got an idea that my current employer will make it rather unpleasant, when i say about redundancy payment, wish me luck and thanks once again for your superb help in this matter, much appreciated

[Dogsbody2]

TUPE is quite complex, even for small employers, but there is no reason why you should lose out over this. From your second post, it seems that your original employer does think it has transferred your employment undertaking to the second, or it wouldn't be thinking that holiday rights have transferred.
As well as the links provided by others above, you might wish to read this
http://www.acas.org.uk/TUPE
and download the leaflet published by ACAS on it.
You should also contact ACAS for advice in your situation.
At he very least your original employer should have consulted with you on what was on offer, and confirmed what the arrangement was supposed to be in writing.
If he has dismissed you through redundancy, he should have given you notice (probably five weeks in your case, and certainly not less than 5), then either asked you work the notice or pay you money in lieu of. Also he should have paid your holiday to the date of dismissal, AND redundancy of at least the minimum statutory amount.
If he thinks he has TUPE transferred you, he should have confirmed that in writing to you. Neither of these things seem to have happened.
It is beyond the scope in a few words to explain whether TUPE applies or not - ACAS can and will help you with that. It is in essence driven by the nature of the relationship between what is closing with the first employer and what if anything of it the second employer is taking over.

[Dogsbody2]

A couple of other points.
The fact that business 1 is not insolvent is irrelevant - it is what business 1 transferred to business 2 that matters. One wonders if your job is the same or similar and whether the goods you made or services you supplied are going to the same end customers.
The proposed change in hours and location being foisted on you is also irrelevant. The purpose of TUPE is to protect you against such enforced changes without your agreement, else redundancy applies.

[cottonbud]

ooh db2 good point, the thing is me and my work collegue are being kept totally in the dark, current employer is telling customers, "my girls are going up to the new place" new employer is saying he has bought the business and is prepared to take us on moral grounds, he has made it perfectly clear that he would rather get new staff and already thinks i'm creating waves, we will in essence be doing the same job, serving the same customers, just in a new location. I have no idea what the two of them have agreed on transfer of the business, and everyone seems to know except us, the workers, it seems very unfair and unprofessional to be honest. I will take your advice and look at the site, seems this is getting more and more complex, i'm not liking it one bit and have got until the 15th of October to try and sort it out. What an absolute mess, all i know is the current business is closing, relocating to another employer, who has stated we will have a new contract with new hours.

[Buenchico]

>>>new employer is saying he has bought the business

That information wasn't available when I first replied here. If that's the case, it's the TUPE rules that apply, not the redundancy ones. Someone needs to find out what's really going on!

[cottonbud]

yes buenchico, that is my understanding, but as we are being kept in the dark, i cannot confirm it at all, the whole thing is ridiculous to be honest, one employer saying one thing and the other saying another, i now have a horrible feeling i wont be able to claim redundancy, im sure current employer knows exactly what is going on and even to the saying of non payment of annual leave. Dont like any of this

[Dogsbody2]

TUPE applies, no ifs or buts.
Old employer should have written to you and confirmed this, after consulting individually with you.
Get onto ACAS helpline on Monday, and read the link I provided.
New employer has a legal responsibility to offer you broadly similar terms of employment, or offer you redundancy.
New employer seems to think he can evade the legal responsibilities by keeping you in the dark.
ACAS can help with this, no need for Union membership.

[ladybirder]

They can't get away with treating you like this. Speak to ACAS first thing on Monday morning and good luck.

[Peter Pedant]

ACAS deffo

[EDDIE51]

Yes there is something wrong here. If you are being transferred under TUPE you take with you all terms and conditions from your old employment.
Looks like they are trying to get away with not paying redundancy or the benefits of a TUPE transfer. ACAS first thing Monday !

[cottonbud]

I totally agree with you E1, there is definately something not right with the whole thing, i will have a word with my current employer on Monday to get the facts straight (before i contact acas), as to exactly what has been transferred, current employer telling "customers" new employer has taken on the business and the staff, but new employer saying he has only bought the business and is taking us on as a "moral" not legal duty, he states that it will be a fresh start with new hours and new contract, thus absolving him of any rights of my 5 years employment. If i agree to new contract then i understand i am basically signing away any rights from previous employer. Neither me or my colleague have has anything in writing from either of the employers, its a complete shambles to be honest, and i feel like we have both been let down, and what i didn't like is the fact i have been told by new employer "if you are going to be trouble i don't want you" and he's even asked for us both to hand in a cv !! most bizarre behaviour and i have a feeling in my bones i am being forced into a corner, basically sign the new contract or get out, not a nice way to treat staff, before you've even started

[Dogsbody2]

He is wrong, as you will have appreciated by reading the link to ACAS I provided you.
Your current employer also has an obligation to consult prior to the change-over, and he has not done this. Print out the leaflet on TUPE from ACAS and take it to your meeting tomorrow – shows you know what you are talking about.
Then phone ACAS. Both employers need to get familiar with TUPE rather quickly – there’s more to selling a business with incumbent employees than either of them realise.