Where an employee has been given notice of redundancy, if he or she seeks to leave before the end of the notice period to take up a new job will this affect his or her statutory redundancy payment?
The answer depends on whether or not the employer objects to the employee's premature departure. If the employee gives written notice to terminate his or her employment on a date earlier than the original termination date given by the employer, he or she will not lose the right to a statutory redundancy payment if the employer does not object to the early departure. If, however, the employer does object, it must serve written notice on the employee requiring him or her to withdraw the notice and continue in employment until the original termination date. This written notice must state that, if the employee fails to do so, the employer will contest any liability to make a statutory redundancy payment (s.142(2) of the Employment Rights Act 1996). If the employee does not comply with the requirements of the employer's notice, under s.142(1) he or she is prima facie not then entitled to a statutory redundancy payment.
However, in accordance with s.142(3), the employee is able to apply to an employment tribunal, which will decide whether it would be just and equitable for the employee to receive the full statutory redundancy payment, part of the payment or no payment at all, having regard to the reasons why the employee sought to leave employment early and the reasons why the employer required him or her to continue in it. It is likely that, if the employee had to leave on a particular date to take up a new job in circumstances where the new employer was not willing to postpone the start date, the tribunal would hold that it would be just and equitable in the circumstances for the employee to receive the redundancy payment. Conversely, if the start date of the new job could have been postponed until after the original termination date specified by the employer, and the employer needed the employee to continue in employment until the original termination date to complete an assignment, the tribunal might well decide that the employee's actions in leaving early were not reasonable in the circumstances, and therefore that it would not be just and equitable for him or her to receive a redundancy payment. Ultimately, the issue is one for the tribunal to decide according to the particular facts of the case.
If the employer and employee mutually agree to substitute an earlier date as the date of termination of employment for the date originally specified by the employer, this issue does not arise and the employee will receive his or her statutory redundancy payment in full.