We have a situation where a relocation has resulted in an employee who is unable to relocate and unable to commute to our new location. We have begun a consultation process and are looking for suitable alternative employment in the current location (a suitable position is highly unlikely). The consult ends on 30 May, when the employee has been told they will have redundancy confirmed, and their job will be redundant on 4 July (when the relocation date is).

They have now asked to finish earlier, or take their holiday for the last two weeks on the period so they can finish on 15 June. They have been offered a new job externally, but it comes with a stipulation that they need to start on 16 June. Does this mean the situation changes into a straight forward resignation? Or do we still need to honour a redundancy if we cannot offer them an alternative internally by 30 May??

To complicate matters the employee has stated that if they lose their redundancy package they will not be able to take the job offered as it involves buying shares in the new employer's company.

Any advice greatly appreciated

Dear Graham

this is not that unusual, although the detail of the provisions in the Employment Rights Act about this are quite complicated.  Basically, it depends on whether the employer absolutely needs the employee to stay.  If it does, eg to ensure an orderly winding down of business, then whether the employee is able to leave early and still claim their redundancy entitlement depends on the timings, i.e. of the redundancy notice and the employee's notice of a wish to leave at an earlier date.

In the situation you mention it sounds like formal notice of redundancy has not yet been given.  If that is the case, then if the employee wants to leave it will be a resignation not a redundancy.  Once redundancy notice has been given, then where the employee wants to leave early as they have found other work, the statutory provisions usually allow them to do so without forfeiting their redundancy entitlement, otherwise the employee would effectively be penalised for their successful job search.

I don't know what the employee's notice entitlement is in the situation you mention, however, given that you are talking about no more than 2-3 weeks difference between the date they would like to leave and the proposed closure date, it is likely that the employee would be able to give a valid counter-notice of an earlier redundancy date and be able to leave on 15 June with their redundancy entitlement preserved.

An employer can withhold redundancy pay to an employee who they wish to stay for the duration of their redundancy notice, however, in my experience that doesn't happen often.  The employee can leave early if they wish and could make a claim for the redundancy money.  If the notice/counter-notice provisions have been complied with, the burden is on the employer to show that the employee was not entitled to their redundancy pay, rather than on the employee to show that they were entitled.

I hope this helps.  If you need any specific advice on this, please feel free to email me.

Paul

Thanks for advice Paul, very useful.

Since I posted that topic, we have found a role that could arguably be suitable for the employee. The employee is saying however it is not suitable (due to job satisfaction, experience etc) and want to continue with the consultation, and they believe they will be eligible for redundancy still.

We believe that in actual fact, by turning down this Suitable Alternative, they are in effect waiving their right to redundancy.

If at the end of the consult they still refuse to takle this suitable alternative, can they issue us with a counter notice ? And still end up leaving on 16th June giving us 2 weeks notice instead of the contracual 3 months?

I understand that a "suitable Alternative" is not black and white and is highly subjective, and could end up being decided by an employment tribunal. We have no experience of this so I am not sure which side is favoured more in this instance (the individual or the company).

advice greatly received

hi Graham,

Am happy to discuss this with you, it will be a lot quicker over the phone.  If you send me an email with your contact details I will call you.

Paul

Hi Graham,

Some thoughts for you!

General rules as I see them to prevent entering into ET (or losing any case) are to be "reasonable and fair" within procedure.

Therefore, is the redeployment position on offer equitable in status, job title, salary, experience to the current role!

I agree with Paul on not penalising for being successful in finding a new job, bad move.

However, perhaps there is a discussion to be had about not paying full notice period.

He wants out early, and I would suggest that is a negotiable point for discussion which by way of compensation you may not pay out total notice period. 

If this gets a bit complicated/messy, you can think about a compromise agreement. You would need to seek legal advice on this and probably pay for his independent legal check. However you are now in paying out more money territory.

So, keep it fair and reasonable (put yourself in his shoes!), although redundancy try to keep it amicable i.e.negotiate.

regards

Tim