Employee requesting redundancy

[ruby123]

I have an employee who has a long history of long term sickness. Today at a return to work meeting after 5 months off sick the employee has asked if he could be made redundant.
To be honest this suits me, sure it will cost but it’s a relief to be able to put this thing to bed so to speak.
Can anyone see any issues with this? I assume as he has made the request in writing then there can be no come back?

 

[alan1302]

Unless their role is no longer needed then surely they can't be made redundent, and they could just leave?

 

[ruby123]

Unless their role is no longer needed then surely they can't be made redundent, and they could just leave?

I think it’s likely he would continue to play the system, it’s a way of him going with a lump sum rather than nothing or continue with sick pay

 

[Newchodge]

Why on earth would you do that. Why do you not manage them out of the job by following proper procedures?

If you make them redundant when they are not they can claim unfair dismissal.

 

[Newchodge]

If you want to get rid of them and give them a payoff you need to agree a settlement agreement and have is properly, legally signed off.

 

[UKSBD]

If they have submitted a letter requesting they be made redundant can that be construed as a reignition request?

 

[Newchodge]

If they have submitted a letter requesting they be made redundant can that be construed as a reignition request?

No, whatever reignition may be. You don't request resignation, you resign. You cannot request redundancy unless there is an existing redundancy situation and you wish to volunteer to be one of those made redundant

 

[UKSBD]

What would it be classed as then if they did do what they are asking about?

Would it technically be an unfair dismissal even though the employee wanted to leave?

 

[ruby123]

What would it be classed as then if they did do what they are asking about?

Would it technically be an unfair dismissal even though the employee wanted to leave?

That’s what I’m getting at, how can it be unfair if it’s there request?

 

[Paul Norman]

Redundancy does not work in that direction.

If they want to leave, and the two of you want to negotiate a severance package, that is acceptable.

But it is not redundancy, and if you go that route they could, should they choose, challenge it further through the process.

 

[Paul Norman]

That’s what I’m getting at, how can it be unfair if it’s there request?

It is not about whether you, or I, think it is fair or not. It is about complying with due process in the eyes of the law.

Never go outside good practise. It can - it often does - bite you nastily afterwards.

 

[Inva]

When you don't follow due procedure, the other party can come back and say you misrepresented the situation and manipulated them into taking X action against their interest.

As a rule, I assume that the other party will 100% take me to court using lies and tears. Then, what I have to do regarding documentation becomes clear.

 

[UKSBD]

Redundancy does not work in that direction.

If they want to leave, and the two of you want to negotiate a severance package, that is acceptable.

But it is not redundancy, and if you go that route they could, should they choose, challenge it further through the process.

What would it technically be though?

Assume they did it, thought no more about it, then 4 or 5 years down the line HMRC (or whoever monitors these things) discovered it.

Would they class it as a dismissal, a resignation, the person is still technically an employee, something else?

 

[STDFR33]

What would it technically be though?

Assume they did it, thought no more about it, then 4 or 5 years down the line HMRC (or whoever monitors these things) discovered it.

Would they class it as a dismissal, a resignation, the person is still technically an employee, something else?

It's a type of dismasal.

Properly drafted legal agreement is required and usually settlemwnt involved.

 

[Newchodge]

What would it technically be though?

Assume they did it, thought no more about it, then 4 or 5 years down the line HMRC (or whoever monitors these things) discovered it.

Would they class it as a dismissal, a resignation, the person is still technically an employee, something else?

HMRC would not give a s**t. Nobody monitors these things.

The employee would have a letter stating that they had been dismissed by reason of redundancy with a redundancy payment into their bank. They go to the employment tribunal statimg that there was no redundancy situation and they were unfairly dismissed because of their sickness absence, with the employer pretending it was redundancy. The employer could not possibly prove that there was a redundancy situation, as there was no redundancy situation.

The right way to do it is to agree a parting of the ways with a payoff signed by a compromise agreement which includes a valid clause that the employee cannot claim unfair dismissal.

 

[obscure]

+1 to what Cyndy said. There is no reason to use a made up redundancy (that could come back and bite you later) when there is a perfectly good process for a mutual parting of the ways.

Agree and amount and sign a compromise agreement. Make sure that the employee gets proper legal advise. This is important because ....

The agreement will only be valid where (i) it is in writing and (ii) the employee has received independent legal advice from a relevant adviser who has professional indemnity insurance.

https://en.wikipedia.org/wiki/Compromise_agreement

 

[ruby123]

+1 to what Cyndy said. There is no reason to use a made up redundancy (that could come back and bite you later) when there is a perfectly good process for a mutual parting of the ways.

Agree and amount and sign a compromise agreement. Make sure that the employee gets proper legal advise. This is important because ....

https://en.wikipedia.org/wiki/Compromise_agreement

Out of interest how could anyone prove there was not a redundancy situation?
For example if I could show my projected turnover was to fall by 40% in the next financial year, would that not be proof of a redundancy situation being valid?

 

[JEREMY HAWKE]

Out of interest how could anyone prove there was not a redundancy situation?
For example if I could show my projected turnover was to fall by 40% in the next financial year, would that not be proof of a redundancy situation being valid?

Can you do that Would you like to do that ?

If you make the person redundant and another employee decides to have a vendetta against you They may raise the point that that persons job is still being done and you may have another case later . Anything could happen .

It might be good to seek the expertise of one of the experts on this site

 

[Newchodge]

Out of interest how could anyone prove there was not a redundancy situation?
For example if I could show my projected turnover was to fall by 40% in the next financial year, would that not be proof of a redundancy situation being valid?

You have to prove there was a redundancy situation, not the other way around. You would have to demonstrate what consultation meetings took place, which role(s) were redundnat and why, how you established the pool of people at risk, how you selected between them and so on. You would particularly have to demonstrate that the person with the poor siockness record, if it is a result of a disability, was not selected due to their disability. Why bother with that risk when there is absolutely no need to do so?

 

[Paul Norman]

HMRC would not give a s**t. Nobody monitors these things.

The employee would have a letter stating that they had been dismissed by reason of redundancy with a redundancy payment into their bank. They go to the employment tribunal statimg that there was no redundancy situation and they were unfairly dismissed because of their sickness absence, with the employer pretending it was redundancy. The employer could not possibly prove that there was a redundancy situation, as there was no redundancy situation.

The right way to do it is to agree a parting of the ways with a payoff signed by a compromise agreement which includes a valid clause that the employee cannot claim unfair dismissal.

This stuff is important.

The HMRC are going the ones to worry about here. It is, as stated above, the employee, who could at any point decide to push back against the process.

And they would potentially have a case. People do this kind of thing, you know.

 

[obscure]

Out of interest how could anyone prove there was not a redundancy situation?
For example if I could show my projected turnover was to fall by 40% in the next financial year, would that not be proof of a redundancy situation being valid?

They don't have to prove anything, you do. You are claiming that a redundancy situation existed... you need to prove that. You need to prove that you went through the necessary stages of a redundancy assessment/consultation and show how you came to the decision you did that this role was redundant. Given that your employees may be asked to provide a witness statement that means you would actually need to go through an entire fake process so that any statements would support your claim that the process happened. Also once you made the position redundant you would not be able to replace this employee... because the role is redundant and thus replacing them would prove that the redundancy was a fraud.

And you would be doing all this for absolutely no reason whatsoever because there is a better, faster, cheaper, legal way of achieving your aim.

 

[Chris Ashdown]

You could also not hire another person to replace her as the Job is redundant and you would be best not to hire a replacement in the same job for a good few months

Follow Cyndy's advice and do it properly