Think Tank

Would I be within my rights not to be at work after my current post ends? I have not yet been given notice or redundancy, but am told that redundancy will be available.

It sounds like your employer has not thought through its restructuring process. While it has told you that the post is being deleted, there is still sufficient work to keep you busy in that position. So you must establish with your employer what the situation actually is.

The first question to answer is: have you been dismissed? Since you have not been given notice, your employer has not brought your contract to an end.

There is a possibility that by deleting your post when there is still work available for you to do, your employer has breached the term of mutual trust and confidence, entitling you to resign.

However, it may not be in your best interests to leave. You have two choices. The first is to agree with your employer that, as it is apparent you are still needed to carry out your current post, it is not being deleted and you are not redundant. You should state that you will continue on the same terms and conditions.

The second option is redundancy – if the post is genuinely deleted from the structure and your work reallocated to other posts. In that situation, your employer should consult with you regarding the redundancy; offer you time off to seek alternative employment; and, if no suitable alternative employment can be found, give you notice to terminate your contract. You would potentially be entitled to a payment.

If the organisation does let you go, you are entitled to notice or a payment in lieu of notice and a redundancy payment. RSLs can also pay up to a maximum of a year's remuneration as a goodwill payment. This could be up to £30,000 tax-free.

As your employer has not gone through this procedure, it looks like your job is not disappearing, you are not redundant, your employment is not being brought to an end and you still have a contract with the RSL.

You may feel that, given the way your employer has acted, it would be preferable to take the money and leave

But you may feel that, given the way your employer has acted, it would be preferable to take the payment and leave.

Rosemary Hart Partner and housing specialist, Trowers & Hamlins

For your post to be redundant it must fall into one of the following categories:

• the employer has ceased, or intends to cease, to carry on the business for which you were employed
  
• the employer has ceased, or intends to cease, to carry on the business in the place where you were employed
  
• the need for employees to carry out work of a particular kind in the place where they were so employed has ceased or diminished or is expected to do so.

When an employer restructures a workforce or business and jobs of a particular kind are lost as a result, this usually qualifies as a redundancy. But where new jobs are created they must be significantly different from the jobs that have been lost, otherwise this cannot be classed as a real redundancy.

Where a restructuring does result in significant differences, the existing employees should be assessed as to their skills and competence to carry out the new job. If an employee is not able to demonstrate the level of skill and competency required for the new job, before any redundancy is considered, the employer must take all reasonable steps to try to find a suitable alternative job for them, and to provide training and support for the change.

Be aware, though, that if the employer can show it was able to provide a suitable and reasonable alternative job and you refused to accept this, depending on its redundancy policy, the employer could decide to make you redundant. And only statutory redundancy pay would be required.

If your employer has identified a suitable alternative job for you, it should clarify and formalise this with you.

You should, at a minimum, expect a new job description, a discussion of training or development needs you may have and to remain on your existing terms, conditions and present salary. But at the end of the day, whether or not the employer has acted properly and reasonably could only be decided by an employment tribunal.

Sandy Staff, Human resources management consultant

What tenancy should interim accommodation involve?
I work for an RSL that's subject to a housing agency agreement with the local authority. It is made under the 1996 Local Authorities (Contracting Out of Allocations of Housing and Homelessness Functions) Order.

The RSL investigates homeless applications and is obliged to secure interim accommodation, where there is a duty to do so, during investigations. This used to be done by the council, which could also provide interim accommodation for this purpose under the 1985 Housing Act.

I can't find any similar provision in the 1988 Housing Act. The choice appears to be between granting a six-month assured shorthold tenancy or a tenancy under which no rent is payable.

Most housing contracts seem to be exempted from the rules on agreements that are not made face-to-face

We would prefer to grant a fixed-term non-assured tenancy subject to payment of a weekly rent, while investigations are completed. In most cases, this will take less than 28 days.

The relevant provision is not in the 1988 act but in the 1996 Housing Act, section 209. This section, in conjunction with section 193, says a local authority can make arrangements with a private landlord to provide interim accommodation to a homeless person pending a decision giving rise to a full duty.

But if they do so, the tenancy granted by the landlord (which will include an RSL) cannot be an assured type for a period of 12 months from the date the applicant learns the result of the decision (or the date of any review or appeal) – unless before or during the 12-month period, the landlord tells the tenant the tenancy is to be an assured one.

For the period that the tenancy cannot be assured, it will be an unprotected one capable of termination by service of a simple notice to quit, as would a tenancy granted by the council under paragraph 4 of schedule 1 to the 1985 Housing Act.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires

Lettings by letter or internet
What type of housing contracts are covered by the consumer protection (distance-selling) regulations 2000 SI Number 2334, and what are the consequences for council and housing association lettings that are concluded via the internet or by letter without face-to-face negotiation?

Regulation 6(2)(b) appears to exclude contracts for accommodation that are concluded to provide lodgings on a specific date or for a specific period.

It is difficult to think of examples where a landlord and tenant would agree a contract for accommodation that is not for a specific date or within a specific period and, if so, why were housing contracts included within the scope of the regulations in the first place?

As their name implies, these regulations are meant to govern contracts for goods and services supplied to consumers where the contract is made exclusively by means of distance communication without the simultaneous physical presence of the consumer and the supplier.

This includes contracts by letter or email, for example. However, clause 6(2)(b) says the majority of the regulations do not apply to contracts for accommodation involving a specified date or period of time. And this would appear to exempt the majority of housing contracts, where timing is usually a part of the agreement.