11th March 2009


 Issue No.  2009/04




In the third and final Information Update on this trilogy on Lay-Off we deal with the employee’s right to request to be made redundant and the employer’s right to object.
It is important to note that whilst there is no upper limit for how long an Employee can be laid off or put on short-time, employees have the right to leave and claim redundancy.  This request is only available in limited circumstances and requires the employee to meet formal requirements.
When can an Employee ask for a redundancy payment?
Subject to certain conditions, an employee can ask for a redundancy payment if: 
  • they have been ‘laid-off’ for 4 or more consecutive weeks OR for a total of any 6 or more weeks within a 13 week period; or
  • they have been receiving less than half a week’s pay each week as a result of short time for 4 or more consecutive weeks OR for a total of any 6 or more weeks within a 13 week period.
The conditions are:
  • They must meet the minimum service requirements for redundancy pay (currently: 2 years service at the effective date of termination).
  • They must resign their employment giving the employer written notice stating that they intend to claim redundancy.  This must be within 4 weeks of the lay-off period for which they are claiming.
  • The employer has not given counter-notice that they reject the claim.
If an employee makes a claim for redundancy pay under these provisions and the employer accepts it then employment will terminate on grounds of resignation.  This is not therefore a ‘dismissal’ in the usual sense.  Providing the employer pays appropriate redundancy pay then it would be very unusual for any valid Employment Tribunal claim to arise purely from this.  Employers should of course guard against the possibility that the initial lay-off (or short time working) gives the employee any room to make a discrimination claim.  The selection of those laid-off should be entirely objectively justified.
Dealing with a request for redundancy pay
The Employer has seven days in which to either accept the claim or give the employee a written ‘counter-notice’.  If the employer doesn’t give counter notice they are assumed to have accepted the claim.
The counter notice is to inform the employee that the claim for a redundancy payment is rejected.  The ground for this will be that work will be available in the near future.  Technically - within four weeks.  Work lasting 13 weeks must be available for this rejection to be successful. Employees can challenge this through Employment Tribunal courts.
The employer can decide to withdraw their counter notice by telling the Employee in writing.
In order to be able to get redundancy pay the Employee must resign by giving notice.




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