Seeking opinion about contract wording

suenstar

suenstar

suenstar

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Cornwall, England
Like many places we've been going through redundancy processes lately and for a few staff there was an option to take voluntary redundancy or apply for a new post.

I've been with the organisation for over 10 years, so have built up fairly good redundancy entitlement... however one of the jobs that was being offered was essentially may old job with a few added duties so I thought I'd put my name forward for it.

I was offered the job, so I'm happy about that bit... but there's one line of text on the new contract that has me a little conflicted about accepting the job.

This is the line of text:
"Your previous employment does not count as part of your period of continuous employment."

Now I'm not sure if I'm just being paranoid but that just seems that they're trying to get staff to agree to wipe their previous redundancy entitlement so that they can make them redundant a few months later without being entitled to anything.

I'm planning to speak to the HR manager on Monday to ask them to clarify the intention of that line on the contract before I sign it.

But in the meantime, I thought I'd get some opinions from here to see if others think that sounds as bad as I think it does.
 
suenstar said:
Now I'm not sure if I'm just being paranoid but that just seems that they're trying to get staff to agree to wipe their previous redundancy entitlement so that they can make them redundant a few months later without being entitled to anything.
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That's exactly how I would read it, I've signed new contracts before and they've never had that in them and I'm also not sure they can legally do that (I have no concrete evidence to prove this though) so I would certainly speak with ACAS or CAB if you don't have a union, I would imagine the HR guy will 'toe the company line' and just say it's commonplace on all new contracts.
 
Contact ACAS for sure, not sure of the motivation around that contract term but my speculations would lead me to the draw the same conclusion as you. As above, I'm not sure of the legalities of it, but I sure as **** wouldn't be signing a contract with that term in.
 
Thanks, I'm glad it's not just me being paranoid and reading it weirdly.
It's the first time I've seen it on a contract as well, this is my 4th contract with this organisation as well so I find it extra odd that they'd add it this time.

As far as I can tell, since my current contract ends on the 31st March and this new one begins on the 1st April, my continuous employment should carry on as normal as there's no actual break in my employment.

When I talk to our HR manager tomorrow, if they confirm that it is a statement that is intended to cancel out my current redundancy entitlement, then I'll be telling them that I need to think about the offer over Christmas.
That'll hopefully give me time to talk to ACAS/CAB and any other professionals to see what they think.
 
Sounds very dubious, redundancy is (in theory) used to make a role redundant not a person redundant. They're supposed to try to find you another role within the organisation (if possible) as you're not being sacked or let go per se rather your role has gone. If they have another role you can fill as an existing employee then that's great, I'm not sure how they can justify this clause though perhaps it is something they're allowed to do but ethically it seems rather unfair if you end up doing essentially a very similar role.

Just a quick look here seems to imply that things like lowered paid jobs might be offered (and can be a valid reason for refusing the offer and collecting redundancy pay instead) and indeed the new job might start within 4 weeks of the old job so I guess if your old job is terminated and there is a gap then perhaps, in theory, it can be a new period of employment, so possibly it is legal albeit rather naff on their part. I mean if this does count as termination and then re-employment then they're perhaps just making that clear in writing to you.

https://www.citizensadvice.org.uk/w...undancy/your-employer-offers-you-another-job/

Definitely worth both flagging up with them and seeking advice on this. If you're reasonably well paid then it could be worth speaking to a solicitor about this too, as in one specialising in employment cases, in general, if you've got a question about contracts then they'll typically take a quick look at a contract and provide a brief overview/reply to you for free, you're then perhaps looking at a couple of hundred quid or so if you need some follow up with a bit of advice over the phone and if they have to get involved in writing a letter(s) to your employer (in the event that this perhaps is unfair and/or there is a dispute) you could be talking just over a grand or so.

Consider also just sending your CV out now! Like even if you're mostly considering staying send it out now, don't delay doing this. If your new job with the current employer is a complete reset then you might as well be somewhere else if you can get a better offer + redundancy pay.

Note in the above link that you have the right to a 4 week trial in the new role, if you don't keep your existing contract then just do this, it's a no brainer/option on redundancy pay if something better comes along... just ask for it even if the "new" role is basically identical... They can't really argue with this, firstly you're legally entitled to it and secondly are they really going to say "but but suenstar, the role is identical" I mean your obvious response then would be like "well why am I being made redundant then?", they can't admit to that, the new role is different..ergo you can request a trial and keep your option to a redundancy payment open.
 
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Your HR department can't do this, you need to speak to the HR department and tell them this and inform them you will be speaking to ACAS if this clause is in the contract.

If this was the case all companies would be doing this and no one would ever get redundancy pay.

Its just a cheap get out, sounds like a bunch of cowboys work in your HR department.

Or if your employer does make you redundant and therefore pays you out, and re-hires you with the new contract that would be fair, but judging from your e-mail this isn't the case?
 
Bounce said:
Your HR department can't do this, you need to speak to the HR department and tell them this and inform them you will be speaking to ACAS if this clause is in the contract.

If this was the case all companies would be doing this and no one would ever get redundancy pay.

Its just a cheap get out, sounds like a bunch of cowboys work in your HR department.

Or if your employer does make you redundant and therefore pays you out, and re-hires you with the new contract that would be fair, but judging from your e-mail this isn't the case?
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What is the basis for this and how does it tie up with this?

https://www.citizensadvice.org.uk/w...undancy/your-employer-offers-you-another-job/

How you should get an alternative job offer
Your employer can offer you an alternative job in any way, but unless they follow the rules you can refuse it and get your redundancy pay instead. Your employer has to:

  • offer you the new job in writing or orally
  • make the offer before your current job ends
  • make sure the new job starts within 4 weeks of your current job ending
  • give you enough detail about the job to understand what you’d be doing and how it would be different to your current job
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Re: the bit in bold, they seem to allow for the fact that a "new" job with the existing employer can start after a gap of up to 4 weeks following your employment ending.
 
dowie said:
What is the basis for this and how does it tie up with this?

https://www.citizensadvice.org.uk/w...undancy/your-employer-offers-you-another-job/


Re: the bit in bold, they seem to allow for the fact that a "new" job with the existing employer can start after a gap of up to 4 weeks following your employment ending.
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Yes I see, but the OP is referring to the clause of "Your previous employment does not count as part of your period of continuous employment."

The employer is still the same, therefore continuous employment should still count, regardless if he is doing another role within the company.
 
dowie said:
Re: the bit in bold, they seem to allow for the fact that a "new" job with the existing employer can start after a gap of up to 4 weeks following your employment ending.
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My interpretation of the 4 week rule is that if the new job doesn't start within 4 weeks of the old job ending then they have to pay you redundancy anyway.
 
Rids said:
My interpretation of the 4 week rule is that if the new job doesn't start within 4 weeks of the old job ending then they have to pay you redundancy anyway.
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that makes sense but the reason I'm bringing it up is to query how it applies here. If this counts as a termination and then re-employment in a "new" job then perhaps the time served does reset.

Bounce said:
Yes I see, but the OP is referring to the clause of "Your previous employment does not count as part of your period of continuous employment."

The employer is still the same, therefore continuous employment should still count, regardless if he is doing another role within the company.
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It might do, it's not clear, ergo OP perhaps needs professional advice.

For example, a colleague of mine left the place we worked at, went elsewhere for 6 months, hated it there, came back... his extra holiday entitlement all lost, time served starts at zero. What he did in that gap is irrelevant to the employer (that he was at another employer) but clearly a 6 month gap of leaving/rejoining meant he was treated as a new employee...

This situation allows for a gap of up to 4 weeks, but presumably, any gap or simply termination and re-employment might reset the clock. Suppose you quit a job but a week later you're begged back with offers of more money, I suspect that unless you negotiate it the default is that you'll be a new employee again.

The open question at the moment perhaps is simply are there any special rules relating to redundancy that cover this? I've not seen any so far but there might well be.
 
To me it reads exactly as you stated. IMO it could also mean they could sack you almost without formal processes as you’re in fact a ‘new’ employee. Ask for a new payroll number and new system logins so you are a completely new employee. If they decline and state you can use your old ones, you’re not a new employee. I’d definitely be seeking advise from ACAS or Citizens advice, maybe even an employment lawyer if you can. Sounds like a cheap way to reduce a redundancy payout in six months time.
 
MissChief said:
It would be a good indicator legally if the company is considering you as the same employee.
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Based on what though? Is this something you've come up with yourself?

It seems a bit arbitrary tbh... IIRC my friend who left for 6 months to go elsewhere and then came back ended up with the same e-mail address/login.
 
dowie said:
Based on what though? Is this something you've come up with yourself?

It seems a bit arbitrary tbh... IIRC my friend who left for 6 months to go elsewhere and then came back ended up with the same e-mail address/login.
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As did I when I left a job for nine months and returned. It would show the company are in effect treating him as the same employee.
 
MissChief said:
As did I when I left a job for nine months and returned. It would show the company are in effect treating him as the same employee.
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Again, based on what exactly? (he *is* the same employee, the question relates to this being a terminated period of employment and then a new one...)

Is this something you've come up with yourself? Please can you at least answer the direct questions as it will save needless posts.
 
dowie said:
Again, based on what exactly? (he *is* the same employee, the question relates to this being a terminated period of employment and then a new one...)

Is this something you've come up with yourself? Please can you at least answer the direct questions as it will save needless posts.
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Oh IANAL but the business shows some indications that they are the same employee and, I’m sure, cannot arbitrarily state that length of employment will be reset if the employee leaves the company. I’m pretty certain most judges and courts would find such a clause null and void should it end up there.
 
MissChief said:
Oh IANAL but the business shows some indications that they are the same employee and, I’m sure, cannot arbitrarily state that length of employment will be reset if the employee leaves the company. I’m pretty certain most judges and courts would find such a clause null and void should it end up there.
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I'm not sure how you can be certain, it seems a bit trivial tbh... as you already know you yourself said you've left a workplace, returned and had the same e-mail address etc.. Same thing happened to my old colleague who left/returned... he had the same job title too, albeit in a different team, he was certainly a new employee again though (it was quite amusing in fact, on his return he was being led around the office on the standard tour by HR, shown all the fire escapes etc..), He'd gone elsewhere for 6 months and come back, that his e-mail/login was the same wasn't of any relevance, his holiday entitlement had reset to the statutory minimum, much to his frustration, as he was back to year 0 of employment.

The question here is still an open one re: whether termination/rehire as part of a redundancy resets this but I think some arbitrary thing like same e-mail/login being used to define employment, unless it' something you can cite actually being used in a case, doesn't have much merit to it.
 
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