Negotiating better redundancy pay (also referred to as a redundancy package) for your settlement agreement is often the first thing on your mind, especially when you feel singled out unfairly for redundancy and therefore the standard severance package if not a fair outcome. One thing to focus on is the way that your employer selected you, especially if it was underhand or somehow just doesn’t seem right. This article discusses how to succeed in a redundancy negotiation, but be sure to read our more general blog on how to negotiate a settlement agreement as well as our page about how much money you should get, plus remember to try our settlement agreement calculator too.
Top 3 Questions to Consider
- Is there a genuine redundancy situation?
- Were you consulted properly regarding your role?
- Were you offered suitable alternative employment?
A lot of redundancies are carried out incorrectly by management, and if you can identify the errors, then that will be the key to negotiating a better redundancy package. Lots of redundancy processes are in fact fake or sham redundancies, whereby your employer decides in advance who they want to select, and then builds a seemingly objective redundancy selection process which happens to select you (when the whole time it was a foregone conclusion).
It is supposed to be the role itself which is identified as being redundant first, and then the employee is identified after, but all too often managers will select those people who, perhaps for personal reasons, they would like to see made redundant.
A lot of redundancy packages will take into account the element of doubt about the process, and will offer an enhanced amount, over and above the statutory minimum. So if you employer is offering you a big redundancy package then it will obviously be harder to negotiate a better pay out. Even if successful in an employment tribunal claim, you might not get more than say 6 months’ pay, or even less if you find another job quickly (tribunals only award compensation in redundancy cases for actual loses and you are under a duty to look for another job).
Once you’ve identified the weaknesses in your redundancy process, then you can go about leveraging them to negotiate a better payment. This should be done on a ‘without prejudice’ basis, which means a special, off the record way of writing or speaking to your employer.
At the same time, you should be running an ‘open’ position whereby you attend all the consultations and go through the appeals process, flagging up where you think they have gone wrong. Be aware that sometimes it can be best not to point out these errors before you actually get made redundant, as your employer would then have a chance to correct them before making you redundant. That assumes that by now you don’t actually want your job back because you feel so aggrieved with their unfair treatment.
Ask for disclosure of documents, especially scoring criteria. Demand to know who rated you against the criteria and why, and ask to see any evidence which the managers referred to, such as absence records or disciplinary records. You should also ask to see the scores of the other employees in your redundancy pool. By this stage your employer may start to get nervous and offer you an increased package. By this point a grievance can also be a good way to go – this forces them to actually consider your arguments rather than just fobbing you off.
It goes without saying that if you instruct lawyers to represent you then you will invariably have a higher chance at negotiating better redundancy pay. This is partly because lawyers will know what to say, and partly because your employer will take you more seriously just because you have instructed lawyers at all, especially if they are specialist employment solicitors (like us).
In order to make redundancies, the employer should abide to certain processes and criteria in order to be fair. These points are outlined below, and you can read more about correct redundancy procedure in our related article ‘Is My Redundancy Fair?’:
- Have a genuine reason;
A genuine redundancy situation might occur when a business or workplace closes. Often though a redundancy situation can occur when there is a diminished need for work of a particular kind. Having a genuine economical, technical or organisational reason for making redundancies, includes situations such as a reduction in client demand or having more efficient systems.
- Make fair selection;
Apply fair and open selection criteria. This could be, for example, include things such as attendance and punctuality, skill-set and performance. The more subjective the criteria (such as measuring employees on skills or experience) the more the employer has to be able to back it up with evidence, such as appraisals or reviews.
- Consult the employees;
Where there are less than 20 redundancies, this consultation should be done individually. If there are more than 20, the employer has to consult collectively with the workforce. In those circumstances the consultation should be with the union or employee representatives and the consultation should last a minimum of either 30 or 45 days depending on the numbers at risk of redundancy.
- Offer the employees alternative employment;
There may be other positions available within the company, for which the employee should be allowed to apply. Whether the alternative employment is suitable depends on the employee’s current job, the type of alternative job offered and pay, prospects, conditions and location on offer.
An employee can still refuse to accept a suitable alternative and still be entitled to redundancy payment if their refusal was reasonable, eg due to health, family commitments and similar reasons. This is where we can help you negotiate a higher redundancy package.
An employee is entitled to a trial period of four weeks in the new job, during which time the employee can still leave and claim redundancy.
Procedurally, there needs to be at least one meeting with the employer and they should give you written notice of the meeting and give you the chance to bring a colleague to accompany you. They can ask questions but can’t answer questions on your behalf. At the meeting they will have to say to you we are going to discuss your redundancy. That will be a serious meeting where you can have a long chat. You can raise any and all issues that you have.
If you are a member of a trade union you can take your union rep to the meeting. If you have some potential claims to bring against the employer, this meeting may be a good time to mention, ‘without prejudice’, that you would like to enter into a settlement agreement. You should try to negotiate an amount of money that you would be prepared to accept.
Statutory Redundancy Pay
To qualify for a statutory redundancy payment, you must have been continuously employed for at least two years. Statutory redundancy pay is calculated with reference to your number of completed years’ service. You get:
- 1.5 weeks’ pay* for each year in which you were 41 years old or above;
- 1 weeks’ pay* for each year in which you were over 22 but under 41 years old;
- 0.5 weeks’ pay* for each year in which you were under 22 years old.
*Unfortunately, a weeks’ pay is subject to a maximum figure of £479. The maximum number of years which may be counted is 20. Even if you have been somewhere for say 20 years, from the age of 41 to 61, you would be entitled to only (20 x 1.5 x 479) = £14,370. Redundancy payments up to £30,000 are not taxable. Any money above the statutory minimum is usually offered in exchange for you agreeing not to sue your employer.
Your employer must give you a written statement showing how the amount of your redundancy pay has been calculated. An employee who does not receive their redundancy payment can make an employment tribunal claim within six months of the redundancy.
Can I be made redundant on the basis of test result only?
No, said the employment tribunal and the Employment Appeal Tribunal in Mental Health Care (UK) Ltd v Biluan & Anor. In this case, workers had to sit a test, similar to the kind of test used in recruitment situations, and the outcome determined if they were made redundant or not. No account was taken of the employee’s employment record or managers’ views. In fact management were surprised by who was selected. Despite this “some very good workers” were dismissed by way of redundancy and the tribunal found their dismissals unfair. Some account should have been taken of other matters not just their test results.
Jumping before you are pushed
There is one tip which applies to all redundancy pay negotiations, whether you have a decent legal case or not. If you are sure that you are going to be made redundant, then why not offer to resign voluntarily first, on the basis that your employer pays you a sum of money which recognises the amount of time and effort saved by short circuiting the redundancy process. For example, you might save them a month of HR and management time, so you could ask for a month’s salary plus say another month to take into account their time and effort. Its attractive from their point of view too as they won’t have to carry out any kind of fair process or give you a right of appeal.
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