Resigned to redundancy
Question
I have been offered a position within a new company on the same day that my current employer announced they'll be closing down the site. Can I delay my letter of resignation in order to collect any redundancy owed?
Answer
To be able to leave and still get your redundancy payment, the company would first have had to have issued formal redundancy notices giving the final date of employment. You would then have to meet a range of conditions, mainly dependent on you acting within the 'obligatory period' - this is the longer of either the contractual or statutory notice the employer would normally have to give you to terminate your contract of employment.
To calculate the start of the obligatory period, you must work out your entitlement to notice (contractual or statutory, whichever is longer). You should then count back that amount from the date the dismissal is to take effect to give the earliest date on which you could give notice without losing your right to redundancy pay. This means that if you have worked for the company for six years your statutory notice will be six weeks, but your contract could be longer.
For example, if a company has given dismissal notices effective from 30th November, which is 10 weeks away, an employee who has worked at the company for six years is entitled to six weeks statutory notice - so the obligatory period would start on 19th October. It is during the period from 19th October to 30th November that they would be able to leave and keep their redundancy pay providing they meet the conditions below.
To protect your entitlement to redundancy pay and leave before the end of obligatory period you must do all of the following:
- Take no action until you have been given a firm date, preferably in writing, of your date of dismissal for redundancy;
- During the period of obligatory notice, give notice to the employer (in writing), of your intention to leave before the obligatory period ends. You don't have to give your full notice to your employer, provided you give notice within the obligatory period. If the client gives notice before the period of obligatory notice starts, the right to redundancy payments will be lost;
- Obtain the employer's consent to leave before the date of dismissal.
The employer cannot lawfully unreasonably refuse a request to leave before the end of the notice period. If they refuse, you should complain to an Employment Tribunal. As a general rule, the nearer you are to the end of your notice period, the easier it will be to show that the employer's refusal was unreasonable.
If you are refused permission to leave early you should try to delay the date of starting the new job until the end of the notice period. If this is not possible, you will have to decide if it is worth risking the possible loss of redundancy payments in return for the prospects of immediate employment.
You may want to talk things through with ACAS 08457 474747 or your local CAB for further information.
Updated: 13/04/2010
Question answered by CAB
