Redundancy: paragraph 13
Effect
830.This paragraph permits employers to provide redundancy schemes which mirror the statutory redundancy payments scheme contained in Part 11 of the Employment Rights Act 1996 but offer more generous terms.
831.The statutory redundancy scheme at Part 11 of the Employment Rights Act 1996 (“ERA 1996”) requires an employer to make a payment upon redundancy, the amount of which is dependent upon the employee’s age, length of service, and weekly pay (subject to a cap: see Schedule 227 to the ERA 1996). The statutory redundancy scheme is lawful under Directive 2000/78/EC as it is objectively justified under Article 6.1 of the Directive.
832.An employer who makes a redundancy payment to an employee in accordance with Part 11 ERA 1996 does not have to justify it. Both the statutory authority exemption (in Schedule 22) and this regulation make it clear that the employer is acting lawfully, even though the payment is calculated using age-related criteria.
833.But this paragraph is not aimed at such employers. The principal object of this provision is to assist those employers who base their redundancy schemes on the statutory scheme but who are more generous than the statutory scheme requires them to be.
Background
834.This exception is designed to replicate the effect of an existing exception in regulation 33 of the 2006 Regulations.
Examples
An employer may pay qualifying employees an enhanced redundancy payment based on their actual week’s pay rather than the maximum amount as specified in section 227 ERA 1996 (currently £380).
So an employee (P) aged 45 with 18 years continuous employment earning £600 a week would receive one and a half weeks pay for each year of employment in which he was not below the age of 41 and one week’s pay for each year of employment in which he was not below the age of 22 so P would receive the following: 3 x (1.5 x £600) + (15 x £600) = £11,700.
An employer may pay qualifying employees an enhanced redundancy payment calculated in accordance with section 162 of ERA 1996 but after calculating the appropriate amount for each year of employment, the employer may apply a multiple of two rather than one. So the employer could pay P £23,400 rather than £11,700.
Alternatively, the employer could apply the maximum amount of £380 to P’s payment but apply a multiple of 2 and pay P the following: 2 x 3 x (1.5 x £380) + (15 x £380) = 2 x (£1710 + 5700) = £14820.
