confidential managing redundancy webinar 9th july 2020€¦ · 09-07-2020 · managing redundancy...
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Managing redundancy webinar
9th July 2020
Managing redundancy webinar
9th July 2020
⚫ Under the Trade Union and Labour Relations (Consolidation) Act 1992 collective consultation, with a view to reaching
an agreement, must be about:
avoiding the dismissals
reducing the number of employees to be dismissed
mitigating the consequences of the dismissals
1
What essential topic must consultation cover?
Managing redundancy webinar
9th July 2020
⚫ Individual consultation should include:
the selection pool
the selection criteria
how the criteria are to be applied
any challenges to the scores
available vacancies
alternatives to redundancy, for example changes in hours, salary
assistance for getting other work
2
What essential topic must consultation cover? (2)
Managing redundancy webinar
9th July 2020
⚫ Failure to consider the pool is likely to make any dismissals unfair
⚫ Usually expect to discuss it with any recognised union
⚫ There are no fixed rules – range of reasonable responses test
⚫ Be wary of unreasonably narrow pools - Hendy Banks City Print Ltd v Fairbrother and others UKEAT/0691/04
3
How do we choose our selection pool?
Managing redundancy webinar
9th July 2020
⚫ Key questions:
Which particular kind of work is disappearing?
Which employees do that particular kind of work?
⚫ Consider:
Employees who do similar work
Employees with interchangeable skills
Whether the selection pool was agreed with a union or employee representatives
Employees at different sites
⚫ Concentrate on the reality, not the terms of the written contract
4
How do we choose our selection pool? (2)
Managing redundancy webinar
9th July 2020
⚫ Bumping is where a person at risk of redundancy expresses an interest in a position that is occupied and is
considered appropriate to replace the person currently occupying the position. The current incumbent would be
'bumped' and would be at risk of redundancy
⚫ There is no general duty to consider bumping
⚫ But the dismissal may be unfair if you do not consider bumping
5
Do we need to consider bumping?
Managing redundancy webinar
9th July 2020
⚫ Effect on morale
⚫ Consulting only selected employees is less likely to be fair, particularly where there is a small pool
⚫ A mixed approach - group consultation before selection
⚫ Note that in a collective consultation, all those affected must be consulted, so include the whole pool
6
Should we consult all the employees in the poolor only those provisionally selected for redundancy?
Managing redundancy webinar
9th July 2020
⚫ Selection criteria should be objective and capable of independent verification
⚫ Tribunals tend to dislike those criteria that are subjective and cannot be backed up with evidence:
Who, in the opinion of the manager, would keep the company viable?
Who is best suited for the needs of the business under the new operating conditions?
Who has the best attitude?
⚫ Subjective criteria may be acceptable provided they are objectively applied
7
What selection criteria do tribunals dislike?
Managing redundancy webinar
9th July 2020
⚫ Be careful of criteria that could be discriminatory:
last in first out
attendance
appraisals
8
What selection criteria do tribunals dislike? (2)
Managing redundancy webinar
9th July 2020
⚫ She has the right to be offered suitable alternative vacancies in preference to others where 'it is not practicable by
reason of redundancy' to continue to employ her under her existing contract
⚫ Failure to comply will result in an automatically unfair dismissal (section 99 ERA 1996)
⚫ This provision is due to be extended to cover the period from notifying their employer until six months after the end of
maternity (or adoption) leave
9
When must we give preference to a woman on maternity leave, and when not?
Managing redundancy webinar
9th July 2020
⚫ The key word: right to be offered suitable alternative employment in preference
⚫ There is no preference in selection for their existing role
⚫ They are not required to go through a competitive interview/recruitment process
⚫ Suitable alternative employment is
work that is suitable and appropriate for her to do (regulation 10(3)(a), MPL Regulations)
where the capacity and place in which she is to be employed, and the other terms and conditions of her
employment, are not substantially less favourable to her than if she had continued to be employed in her old
job (regulation 10(3)(b), MPL Regulations)
10
When must we give preference to a woman on maternity leave, and when not? (2)
Managing redundancy webinar
9th July 2020
⚫ You are obliged to mitigate the consequences of redundancy for anyone at risk
⚫ This should include looking for alternative positions and redeployment opportunities
⚫ Those at risk should be given preferential treatment
⚫ The search for alternatives should continue throughout any notice period
11
Can vacancies be advertised externally?
Managing redundancy webinar
9th July 2020
⚫ Proposal to dismiss 20 or more employees within 90 days at one establishment
between 20 and 99 dismissals - consultation must begin at least 30 days before the first dismissal takes effect
100 or more dismissals - consultation must begin at least 45 days before the first dismissal takes effect
12
Can we end collective consultation (for 20 or more redundancies) before the end of the 30- or 45-day period?
Managing redundancy webinar
9th July 2020
⚫ There is a common misconception that collective consultation must last for the relevant minimum period (30/45 days)
⚫ The minimum period must elapse between the start of consultation and the date the first dismissal takes effect
⚫ Consultation can end once agreement has been reached, or the possibility of agreement has been exhausted
⚫ Employers can give notice of termination during the minimum period, as long as the expiry of the notice occurs
outside the period
13
Can we end collective consultation (for 20 or more redundancies) before the end of the 30- or 45-day period? (2)
Managing redundancy webinar
9th July 2020
⚫ 90 days' gross pay for each affected employee (protective award)
⚫ Possible claim for unfair dismissal
14
What are the damages for a breach of the collective consultation obligations
Managing redundancy webinar
9th July 2020
Questions and close
15
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