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Natalie Ward, associate solicitor, and Michael Tatters, partner, from Thrings, offer advice on housing rights in a redundancy situation.
Q: My brother-in-law was made redundant from his herdsman’s job at the end of August.
He lives in tied accommodation and to date has not received his redundancy payment. They haven’t mentioned the property he is still living in, but now say they have withheld his redundancy for rent.
He hasn’t agreed any housing contract and has seen no paperwork. He has received a text asking for £800 a month plus £1,500 deposit, which he can’t afford and hasn’t agreed to. Can they withhold his money?
A: Although you haven’t stated how long your brother-in-law was working for his employer prior to his dismissal, it is assumed to be more than two years, given that redundancy pay has been mentioned.
Under the Employment Rights Act 1996, you need to have been employed for two years in order to qualify for a statutory redundancy payment.
What this also means is that your brother-in-law is likely to have been working in agriculture for at least 93 of the past 104 weeks.
Accordingly, even though there is no housing contract in writing, he is likely to have full protection under the Housing Act 1988 as he will be what is known as an assured agricultural occupier.
If he worked in agriculture before 15 January 1989, similar protection is permitted under the Rent (Agriculture) Act 1976.
Essentially this means that his employer cannot require him to vacate his tied accommodation, notwithstanding the termination of his employment, without first having a valid ground for possession.
See also: Danger of undocumented family loans
With the employment at an end and your brother-in-law having expressed a desire to remain in occupation (which is not evident from what you say), the employer can insist he pays a market rent for the property for as long as he wishes to remain there.
It sounds as though your brother-in-law’s employer is aware of this, but importantly the employer cannot demand a rent by text. The employer also cannot require a deposit to be paid.
To impose a new rent, the employer must first serve him with a specific Section 13 Notice, giving him not less than one month’s notice of the proposed new rent and the start date. In absence of receiving the correct notice, no rent is due.
This allows your brother-in-law a period of at least one month to decide whether to stay and pay a market rent, or stay and challenge the proposed rent if he does not consider it represents a fair and reasonable market rent.
He should seek the advice of a local letting agent as to whether the proposed rental is reasonable for his property.
Any objection to the proposed rental amount must be referred by your brother-in-law to a rent assessment committee within the one-month period. The committee can hear representations from both parties before determining a market rent.
Returning to your question, the employer cannot withhold redundancy pay for any reason.
Your brother-in-law needs to establish his right to a statutory redundancy payment – in order to preserve his ability to make a claim in the employment tribunal should this become necessary.
He should do this either by writing to his former employer and formally claiming his redundancy payment; referring the question of his entitlement to a payment to the employment tribunal; or issuing an unfair dismissal claim in the employment tribunal.
He must do one of these things within six months of his last day of employment (or notice period, if he worked one).
My recommendation would be for your brother-in-law to contact his employer in the first instance, and to do so quickly.
There appears to have been a lack of communication since the termination of his employment which has led to confusion on all sides. A discussion with his former employer could well resolve these issues quickly and cost-effectively.
Fees are now payable for bringing claims in the employment tribunal, so there should be a considerable incentive to resolve matters informally.
If matters cannot be resolved this way, claims for statutory redundancy payments are covered by the rules on Acas Early Conciliation, so your brother-in-law will have to contact Acas with a view to resolving this dispute with their assistance prior to issuing a claim in the employment tribunal.
He should be aware of the limitation periods and contact Acas before the six-month limitation period elapses.
This is a complex situation, and it is recommended that your brother-in-law seeks specialist independent legal advice to assess his case.
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