Redundancy pay linked to lay-off and short time working 





An employee laid off without pay or put on short-time working (earning less than half their weekly wage) may be able to claim a redundancy payment. The rules, summarised below, are complicated and the timetable is strict, so anyone considering applying should ask for advice from their union or Citizens’ Advice.
The rules are found in sections 148-154, ERA 96. 


Employees with at least two years’ service can claim statutory redundancy pay after being temporarily laid off (without pay or on less than half a week’s pay) for either:


• more than four weeks in a row; or





• more than six non-consecutive weeks in a thirteen-week period.





To claim a statutory redundancy payment when temporarily laid off, the employee must follow this strict procedure:



• first, the employee must write to their employer to tell them they intend to claim statutory redundancy pay. This must be done within four weeks of the last non-working day in the four or six-week period;




• the employer has seven days to either accept the claim or send a written counter-notice objecting that no redundancy pay is due;





• an employer should only send a counter-notice if they expect the normal working week to resume within four weeks and to last at least 13 weeks;





• the employer can withdraw their counter-notice in writing;





• if the employer does not send a counter-notice, the employee can assume that the employer accepts that they are redundant. The employee must resign by giving contractual notice to claim redundancy pay. The timing of the resignation is crucial. There are just three weeks in which to resign, counting from either:




◊ seven days after giving written notice to the employer, assuming no counter-notice is sent by the employer; or 





◊ if the employer withdraws their counter-notice, the date on which this happens. 





Only by strictly following the procedure set out above will a laid off employee be able to claim a redundancy payment (Craig v Bob Lindfield & Son Limited [2015] UKEAT/0220/15/LA).


It is a breach of contract to lay-off employees or put them on short-time working if there is no genuine downturn in work, or to serve a statutory counter-notice if there is no genuine expectation of a reasonable period of full-time working (Craig v Bob Lindfield & Son Limited [2015] UKEAT/0220/15/LA).





An employee who is made redundant while on statutory short-time working is entitled to redundancy pay based on their normal weekly wage before they began short-time working (section 226(5)(6), ERA 96, Dutton v Jones t/a Llandow Metals [2012]UKEAT/0236/12/ZT). Consent to short-time working is not consent to waive any other rights under the contract of employment.