Redundancy and Restructuring

Jane Klauber

10 May 2011

ALTERNATIVES TO REDUNDANCY

Natural wastage

Let agency staff go

Cut back/freeze recruitment

Reduce/eliminate overtime

Lay off/short-time working

Consider offering voluntary redundancy

VARYING A STAFF CONTRACT

Alternatives to redundancies: Temporary pay freeze Reduction in hours Reduction in pay By informed and express consent By express variation clause but any unreasonable change

may constitute a breach of trust and confidence By serving notice and offering a new contract following

consultation But unilateral imposition without a variation clause will

amount to unfair dismissal as well as breach of contract

MOBILITY CLAUSES

The “factual” rather than “contractual” test will apply

Commonly employers will offer redundancy where significant relocation is required

The employee will not be entitled to a redundancy payment if the transfer to a new workplace constitutes suitable alternative employment which he unreasonably refuses

BUSINESS REORGANISATION

The dismissal of an employee who refuses to agree contractual changes may be fair if the employer has a sound good business reason

The employer must evidence the advantages of the changes. Profitability alone is unlikely to be sufficient

WHAT IS A REDUNDANCY?SECTION 139(1)(B) EMPLOYMENT RIGHTS ACT 1996 (ERA 1996) – STATUTORY DEFINITION OF REDUNDANCY

An employee’s dismissal must be wholly or mainly attributable to the employer:

Ceasing or intending to cease to carry on the business for the purposes of which the employee was employed by it (business closure)

Ceasing or intending to cease to carry on that business in the place where the employee was so employed (workplace closure); or

Having a reduced requirement for employees to carry out work of a particular kind or to carry out work of a particular kind at the place where the employee was employed to work (headcount reduction)

UNFAIR DISMISSALFAIR REASON

Employees with over one year of service have the right not to be unfairly dismissed (section 94, ERA 1996)

Redundancy is a potentially fair reason for dismissal (section 98, ERA 1996)

Automatically unfair redundancies (section 105, ERA 1996)

Even where there is a genuine redundancy situation, an employer will need to ensure that they follow a fair process (section 98(4) ERA 1996)

EXAMPLES OF REDUNDANCY Reallocation of duties

Change to the kind of work

Re-organisation leading to a reduced need for employees

NOT REDUNDANCY Appointment of a junior employee to do the same work

Change in an individual’s role if the requirement for employees to do work of a particular kind has not diminished

FAIR PROCEDURE (1)

Procedural fairness is essential to avoid an unfair dismissal claim

Polkey – failure to follow correct procedures likely to render dismissal unfair unless doing so “utterly useless” or “futile”

Question of whether employee would have been dismissed anyway only relevant to compensation

FAIR PROCEDURE (2)

The “Williams Guidelines” warn and consult employees about possible

redundancies; adopt a fair basis of selection; take reasonable steps to minimise the number of

redundancies by considering alternative work.

FAIR PROCEDURE (3)

Union agreement

Contractual provisions

Handbook

FAIR PROCEDURE (4)

Adequate warning

Fair selection: correct pool and objective criteria

Consultation

Suitable Alternative Employment

IDENTIFYING THE POOL

May be agreed with union or employee reps

The jobs may be similar or interchangeable

Ensure there are no jobs outside the identified pool which are the same/interchangeable

SELECTION CRITERIA

Must be reasonable

Non-discriminatory (direct or indirect discrimination)

Performance and ability (must be evidenced)

Disciplinary record

Attendance (exclude DDA and maternity absence)

LIFO

Bumping

FORMAL NOTIFICATION

Notification post at risk

Confirm selection criteria

Invitation to volunteer

Consultation to be followed

Any redeployment opportunities

Redundancy entitlement

INDIVIDUAL CONSULTATION (1)

Reasonable period

Genuine engagement

Documented

Confirm basis of selection and allow employees to comment on individual assessment

Allow employees to make suggestions to avoid redundancy

Consideration of alternative employment

INDIVIDUAL CONSULTATION (2)

Consultation should commence while proposals are still being formulated

No prescribed period but 7 days is the “bare minimum” A failure to consult may render a dismissal unfair

COLLECTIVE CONSULTATION

Proposal to dismiss 20 or more at one establishment within 90 days

20-99 30 days consultation 100+ at least 90 days

Consultation with TU reps or reps appointed or elected who have authority to receive information and be consulted

Also applies to varying terms and conditions where the employer has to terminate employment and re-engage

ELECTION REQUIREMENTS

The employer must:- make arrangements to ensure the election is fair determine the number of representatives to ensure all

groups of employees are represented determine whether employees should be represented

by reps of particular groups decide term of office all affected employees are entitled to vote voting must be in secret and votes accurately counted

COLLECTIVE COSULTATION

Representatives must be provided with written

information including:- the reasons for the proposed redundancies; the number and description of employees proposed as

redundant; total number of employees of that description

employed at the establishment; proposed method of selection; proposed method and timescale for carrying out

dismissal; and Method of calculating any non statutory payment.

COLLECTIVE CONSULTATION

Consultation should include the reasons in a closure case

Consultation must conclude before the first notice is issued

The rules apply even if fewer than 20 are made redundant

COLLECTIVE CONSULTATION

Consultation must be in good faith with a view to

reaching agreement on avoiding dismissals reducing the number of dismissals Mitigating the consequences of dismissals

COLLECTIVE CONSULTATION (5)

Protective awards of up to 90 days pay for failure to consult or comply with election requirements

SUITABLE ALTERNATIVE EMPLOYMENT

No obligation to create a new role

But any vacancy should be offered even if not considered suitable

Evidence will be required as to why a role is not suitable

Trial period (4 weeks) may be extended for retraining

If the employee unreasonably refuses he will lose redundancy entitlement

Consider selection process if more than one employee is eligible

Remember any employee on maternity leave has priority for redeployment

Avoid “slotting in” and “matching” JDs.

ENTITLEMENTSSTATUTORY REDUNDANCY PAY

Employees with at least two years of service are entitled to a statutory redundancy payment (section 135, ERA 1996). Only employees are entitled to statutory redundancy payments

Statutory redundancy pay calculated by reference to an employee’s age, length of service and weekly pay capped at £400 from 1 February

Maximum length of service to be taken into account = 20 years (section 162(3), ERA 1996).

An employee may lose their right to a redundancy payment where either an incident of gross misconduct comes to light during redundancy consultation, or the employee is guilty of gross misconduct during their notice period

ENHANCED REDUNDANCY PAY

Is it required by contract/policy

Is it the best use of the charity’s resource?

NB any enhancement may be caught by age discrimination rules

TAX TREATMENT

Statutory payments are tax free

Termination payments are tax free up to £30k (including the statutory element)

If a PILON is made it will be safest to deduct tax or (if relying on payment as damages for breach of contract) terminate contract before payment is made

TOP TIPS FOR MINIMISING LEGAL RISK

Need for clear business reason for redundancies – should be documented

Take care in considering appropriate selection criteria Managers should be trained to ensure that objective selection

criteria are fairly applied Suitable alternative employment should be considered widely Remember to consult long term sick and employees on

maternity leave Ensure there is someone available to respond to any queries

employees may have Consider offering a compromise agreement

TUPE

Application of Tupe Same rules regarding election of representatives as for

collective redundancy Duty to inform representatives of

- transfer- date of transfer- reason for transfer- legal, social and economic implications- any measures

Consultation on measures Protective awards

TUPE

Any dismissal or contractual change which is transfer-related will be automatically unfair

Unless there is an “ETO” reason requiring a change to the number or functions of staff

A transferor will not be able to rely on a transferee’s defence

An ETO reason may only apply to a section of the workforce

An employee may object to transfer If objection is on the basis of a substantial change in

working conditions he may treat himself as having been dismissed and the dismissal will be unfair

INSOLVENCY

Where insolvency proceedings are instituted with a view to liquidating the Transferors assets, employees do not transfer and there is no protection against contractual variations or dismissals connected to the transfer

Where insolvency proceedings are not commenced with a view to liquidating assets, contractual variations may be agreed with employee representatives in order to safeguard employment

Jane Klauber

E: jane.klauber@russell-cooke.co.uk

T: 020 8394 6483

CONTACT DETAILS