#9716 - Redundancy Payments Model Answer - Employment Law

• Identify the term that is being varied

• Check the contract – Is there a term that allows changes to be made?

  • If so, no breach occurs upon changing the term unless the employer implements such a term in an unreasonable way – that could potentially be a breach of the implied term of mutual trust and confidentiality which amounts to a repudiatory breach (United Bank v Akhtar)

    • If no term that allows flexibility – breach as the employer has altered the terms of the employment contract

• Continue to work and accept the breach

• Leave and do not bring a claim

• Continue work under protest (i.e. raise a grievance as not to waive the breach)

• Resign within reasonable time on the basis of constructive dismissal and claim redundancy and unfair dismissal

• Deadline is 6 months (less one day) from Effective Dismissal Date

• Must be an ‘employee’ (as opposed to a ‘worker’)

• Must have at least 2 years’ continuous employment

• Must not be in an excluded class

• Burden of proof on employee

• Part 1: Was there a redundancy situation? (ERA 1996 s.139) (Question of fact taking into account the actual situation rather than what the contract says (High Table case)):

  • Job redundancy – whole business closes down

  • Employee redundancy – need for employees to do work of a particular kind ceases or diminishes - e.g. public training work has ceased with a focus on in-house training

    • What if work has ceased or diminished so the claimant has been replaced and moved elsewhere? This is still a redundancy situation as any redundancy that ‘bumps’ another redundancy (i.e. some work diminishing has resulted in someone else taking his job) still equates to an employee redundancy (Murray/Safeways)

  • Place of work redundancy – where did employee actually work?

• Part 2: Did the redundancy situation cause the dismissal of this employee? (employee redundancy and place of work redundancy ONLY) (Consider the contract at this point):

  • Example 1 – Constructively dismissed due to being asked to move department: If the employer has asked the employee to do something that is outside the scope of his employment contract (e.g. move to another department), it cannot be the ‘conduct’ of the employee that has caused the dismissal. This is as the employee was not obliged to act that way. Instead, the redundancy has indeed caused the dismissal.

  • Example 2 – Mobility clause: If the employee has a mobility clause and refuses to move, the refusal is a breach of the employee’s contract of employment so the dismissal will be for ‘conduct’ rather than ‘redundancy’ (Home Office v Evans) – in this case; fair reason when discussing UD would also be conduct

• Age factor x length of service x gross weekly pay

• Cap on the maximum amount of a week's pay is 464; cap on number of years taken into account is 20

• Keith’s calculation (45 years old 15 years’ service):

1.5*4*464 = 2,784

1*11*464 = 5,105

Final award = 7,888

• Trial period

  • Test if it is a suitable alternative...