I am currently on maternity leave which is due to end the second week of September, and I did inform my employer that I would be taking additional maternity leave until January 2011. Although since I have been on maternity leave the company have been sold and the office I worked in has been relocated to an area out of my remit with a young baby! My company has made me aware that the office has relocated and sent a letter to me informing me that the consultation of an office move was taking place. I have since decided to return to work earlier than planned and, will be informing my employer that I will be looking to come back to work in October 2010… although the new office location is not accesible for me.Where do I stand? Should I be in receipt of redundancy from my employer due to the relocation (I have been employed for four years and two months approx).
You are currently on maternity leave. Since you have been off work your employers have sold their company. Not only have your employers changed but your place of work has also been changed to an area out of your remit. Your former employers wrote to you to inform you about the relocation and that consultation was taking place. You now wish to return to work in October 2010. You wish to know whether you are entitled to be made redundant as you consider that the new office location is not accessible. I am assuming that the sale of the company was of the assets of the company and not just the shares. On that assumption, although your former employers have sold the company your terms and conditions of employment will remain unchanged as they would have transferred from your former employers to your new employers under the Transfer of Undertakings (Protections of Employment) Regulations 2006 (TUPE).
I mention this because your potential entitlement to a redundancy payment due to the relocation of your office depends on the wording contained in your terms and conditions of employment which would transfer over to the new company. If your contract contains a clause which states that the company has the right to transfer you to a “suitable alternative place of work” or similar wording to meet the needs of the business your entitlement will depend on whether the new location is regarded as “suitable” in terms of travelling time. If you are for instance based in London and it currently takes you an hour to get to work, an additional 30 minutes of travelling time may be considered unreasonable due to the relocation. You would consequently be entitled to a redundancy payment since the definition of redundancy includes ceasing to operate in a particular location.
If your contract does not contain such a clause you could argue that any office move is not allowed under the contract and therefore amounts to a redundancy situation. On the basis that with either case, you are likely to be in a redundancy situation, you can suggest that you “come back” in theory only as soon as possible to benefit from being paid your notice in full together with a statutory redundancy payment. I am not aware of your age, but working on the basis that you are under 41 you would be entitled to a week’s pay (capped at £380 per week) for each full year that you have continuously worked for the company depending on your earnings. Based on four years your payment is likely to be £1,520. If your employers do not agree that you are redundant, you could resign and claim constructive dismissal on the grounds of the new location being unsuitable/in breach of contract. Such a claim would need to be pursued in the Employment Tribunal and you have a strict three months deadline in which to issue such a claim from your date of resignation.
Furthermore, your former employers would have been obliged to inform and consult with you in good time before the transfer took place under TUPE, and if there was a potential for redundancies resulting from the move, further consultation in relation to this. Consultation would include informing you when the transfer would take place and the reasons for it and the implications of that transfer including whether any of your contractual terms would change or whether any reorganisation may need to take place. If your former employers failed to do so you could pursue a claim in the Employment Tribunal for the failure to consult. Such a claim would again need to be issued within three months of the date of the transfer. To be on the safe side, the claim should be mounted against both your former and your current employers. An Employment Tribunal may award up to 13 weeks gross pay (not capped) in compensation for such a claim.
Without knowing the specific details of your situation I am unable to advise you as to whether you would be successful in pursuing claims for constructive dismissal and the failure to consult. If you do not wish to be made redundant the alternative would be to speak to your new employers to ask them whether it would be possible to work for some of the week from home to reduce your travelling time. Your new employers may be amenable to this. If not then you may wish to concentrate on negotiating a settlement package with them to reflect your potential redundancy entitlement and perhaps some additional compensation as a result of your particular circumstances and the trouble that you may find in looking for a new position. I hope this helps with your difficult situation.
Alexa Etheridge is a senior assistant at Davenport Lyons.