Redundant or not?

Akrasia

Hi guys
My other half is in a confusing situation
She works for a shop and the owner is pulling out of the business but it is being taken over by someone else

Right now she doesn't really know what the situation is, they say that the staff will be kept on, but she has also been told that she will get a p45 from the old job and may be re-hired by the new owner

She is currently on maternity leave (unpaid until christmas)

In her situation, My thinking is that she has been made redundant from the old job and so she should be entitled to redundancy payment? Does that still apply even if she is re-hired by the new shop owner?

She is owed all her holiday pay snce the start of the year, is there any way she can claim that back?

as she is on maternity leave (unpaid), does this affect her rights to unemployment benefit if she doesn't get re-hired by the new employer?

Any help at all would be much appreciated. I apologise for the lack of info but we don't really know much ourselves at the moment.

Nody

If I remember correctly by the fact the firm is being taking over by someone else all current employees, contracts etc. carry over; hence in that sense she still has a job (I'm assuming the company was not shut down as a legal entity or went bancrupt here).

If the new owners then decide to make positions redundant in slimming down the operations this is were the question of redundancy would kick in. No matter what though she's still owed the full holidays even with the new owners.

Eoin

That sounds right to me Nody. From NERA:

Transfer of Undertakings

A transfer of undertakings occurs when a business or part of a business is taken over by another employer as a result of a merger or transfer.

When a transfer takes place there is a legal obligation on the new employer to take on the existing staff of the business or the part of the business concerned. The employee's accrued service with his or her original employer is deemed to have been with the new employer. The employee is entitled to terms and conditions of employment with the new employer which are no less favourable than those he or she enjoyed with the previous employer immeditely prior to the transfer.

For further information download our guide to EU Protection of Employees on Transfer of Undertakings Regulations 2003.

Complaints in relation to Transfer of Undertaking can be made to the Rights Commissioner Service.

And from citizensinformation.ie

Under the Regulations the new employer is legally obliged to take on the existing employees of the business. The terms and conditions and your employer’s obligations in your contract of employment are automatically transferred to your new employer, except for pensions – see below. If there is a collective agreement your new employer must continue to its terms and conditions until it expires or is replaced.

P45: In some circumstances employees involved in a transfer of business may be given a P45 by their old employer. They should give this to their new employer. For the purposes of redundancy legislation a transfer of business does not break the employees’ continuity of service. Instead it is transferred to their new employment.

As an aside, you can't be made redundant while on maternity leave, but you can when you get back.

Also, I'd be pretty surprised if you got to keep your job AND got a redundancy payment!

Akrasia

Thanks for the replies, I really do appreciate it

I have a feeling that the business is not being taken over per se, but that the old owner is surrendering her lease and the owners of the shop are taking on a new leaseholder to run the shop.

I've heard it said that if the shop (a sole trader) closes even for a few days between owners than it is not considered to be a takeover and the employees will be made redundant, but the new employer could re-hire the old staff as new employees if he decides to do so?

Pythia

Eoin wrote: »

As an aside, you can't be made redundant while on maternity leave, but you can when you get back.

I thought you could be made redundant as long as it was nothing to do with your maternity leave. E.g. company closes and makes everyone redundant. Am open to correction however!

Eoin

Pythia wrote: »

I thought you could be made redundant as long as it was nothing to do with your maternity leave. E.g. company closes and makes everyone redundant. Am open to correction however!

This page says otherwise, but that's a good question about what happens if the whole company goes kaput.

Can I be made redundant if I am on maternity leave?
No, you may not be made redundant while on maternity leave or additional maternity leave. You may be made redundant when you return to work or while you are pregnant before you go on maternity leave. However if you are selected for redundancy because you are pregnant, you may qualify to bring a claim for unfair dismissal. Selection for redundancy based on certain grounds such as pregnancy is considered unfair under the unfair dismissals legislation.