unfair dismissal - redundancy (webinar slides)
TRANSCRIPT
Unfair Dismissal - Redundancy By: Helen Gardiner On: 17th March 2015 @ 13:00
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Presented by Helen Gardiner
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advice.
REDUNDANCY
Redundancy
situation?
Section 139 Employment Rights Act 1996: An employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -
(a) the fact that his employer has ceased or intends to cease:
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business: (i) for employees to carry out work of a particular
kind, or (ii) for employees to carry out work of a particular
kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
Redundancy situation
Tribunals will not interfere with employer’s freedom to
make business decisions.
Usually 3 categories:
• Business closure
• Workplace closure
• Diminished requirements for employees to do work
of a particular kind
Mobility clauses
Argue diminishing requirement rather than
workplace closure?
Or invoke the clause…
If no clause, a move may be a fundamental breach.
Work of a particular kind
Doesn’t mean work for which the particular
employee was employed.
Focus on the requirements of the business.
Unfair dismissal
2 years’ qualifying service unless automatically unfair
dismissal:
• Pregnancy/childbirth
• Whistleblowing
• Asserting a statutory right
Fair dismissal
For a dismissal to be fair, the employer must have:
• A potentially fair reason for dismissing the
employee;
• Acted reasonably in treating that reason as
sufficient to justify dismissing the employee.
Was decision to dismiss within the band of
reasonable responses?
Leading cases Polkey v AE Dayton Services
Fairness involves:
• Warning and consulting
employees/reps about proposed
redundancy.
• Adopting a fair basis for selection,
i.e. appropriate pool and proper
criteria.
• Searching for suitable alternative
employment.
Williams v Compare Maxam Limited
Where there is a recognised union:
• Early warning
• Consultation with union
• Fair selection criteria
• Fair selection in accordance with
criteria
• Consideration of alternative
employment.
Allow an appeal?
Unclear following Robinson v Ulster Carpet Mills.
Failure to allow appeal is not necessarily fatal.
However, it is good practice.
Avoids argument about it later on.
Consultation
Individual consultation is fundamental to fairness
of dismissal.
Key components:
• Consult when proposals are at a formative stage.
• Adequate information on which to respond.
• Adequate time in which to respond.
• Conscientious consideration of the response to the
consultation.
Ansar v Lloyds TSB Bank plc Collective vs individual consultation
Collective consultation required where there is a proposal to dismiss
as redundant 20 or more employees at one establishment within a 90
day period.
See section 188 Trade Union and Labour Relations Consultation Act.
Contains prescribed matters.
Collective consultation doesn’t eliminate need for individual
consultation.
Consult on what?
Depends on circumstances. Should usually include:
• Opportunity for employee to comment on basis for
selection (pool and criteria)
• Opportunity to challenge redundancy selection
assessment.
• Opportunity to put forward suggestions for ways to
avoid redundancy.
• Consideration of alternative positions.
• Opportunity for employee to address any other
matter or concerns.
Must be within the range of reasonable responses
Selection pool
Discuss choice of pool with recognised union.
Pool of 1 can be fair.
Relevant factors:
• Type of work ceasing/diminishing
• Extent to which employees are doing similar work
• Extent to which jobs are interchangeable
• Whether selection pool was agreed with union or employee reps
Selection criteria
Should be objective and capable of independent verification. NOT personal
opinion. Essential that criteria are also applied fairly.
Suggested criteria:
• Performance and ability
• Length of service
• Attendance records
• Disciplinary records
Weightings can be attached.
Last in first out?
Click to edit
Process of moving A into B’s
role and dismissing B.
No general obligation to
consider it.
Usually bump from top down.
Bumping
Alternative employment
Consider it.
Don’t need to make every possible effort to look.
May have to consider vacancies within the group of
companies.
No obligation to create alternative employment.
May have a competitive interview process.
Practical tips
Initial meeting.
Mark the employees.
Write to each potentially redundant employee.
Consult.
Follow up on suggestions.
Further consultation meeting.
Write to confirm decision.
Appeal meeting.
Redundancy
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