employment law issues for local government lawyer

Report
Employment Law Issues for
Local Government Lawyers
www.emlawshare.co.uk
www.emlawshare.co.uk
Alternative Service Delivery
Models Managing the
Employment and Pension Risks
Kim Howell, Partner
Geldards LLP
www.emlawshare.co.uk
www.emlawshare.co.uk
Why Look Now?
• An unprecedented need to find savings – massive
pressure on public services
• The “NICE” decade is over- Meryvn King May
2008
• Unprecedented cuts to Local Government
budgets in England
– £6.68 billion between 2010 and 2015
– 45% reduction in government grants
– 500,000 jobs lost
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Why Look Now?
• Wide ranging responses to sustain service
delivery through transformation on all levels:– New Operating Models
– Service area redesign
– Process redesign - tighter debt and asset
management
• What, How, So What?
www.emlawshare.co.uk
Work in Progress
• Further budget implications in next spending
round
– £2.1 billion cut in Government funding in
2015/2016
• Employment matters?
– Pay bill lion’s share of budget
– At the heart of effective service redesign
www.emlawshare.co.uk
Work in Progress
• Challenging implications
– Less low hanging fruit
– More confusing media messages re economic health
of UK
– Increasing frustration with pay constraint
– Increasing risk of industrial unrest
– If services disappear, jobs gone for a generation or
longer
– Youth unemployment at all time low
– Public sector recruitment constraints adversely
affecting the future generation
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Obligations - avoiding the pitfalls!
• Setting up ASD vehicles fraught with governance
and legal issues
• Limited scope to change terms and conditions
(especially in TUPE context)- invalid change equals
contingent liability
• Redundancy (costs!) triggered where change of
location, material change in duties or where job
disappears
• Test for Suitability of alternative employment
very employee orientated
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Employment Matters!
Obligation or Opportunity
Obligations - avoiding the pitfalls!
• Transfer to ASD vehicles often triggers bulk transfer
of pension benefits and triggers deficit crystallisation
• Case law complications
– Rules out pragmatic TUPE avoidance measures such
as Secondments- Celtec [2006] 4 All ER 27
– Aggregates multi site redundancies for collective
consultation purposes- Ethel Austin [2013] All ER (D)
17
• Governance in times of adversity- austerity
and bad news is the new normal!
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Why and How does choice of Alterative Delivery
Vehicle matter?
• Redundancy
– Has your policy been adapted to suit the current
challenge?
– Do you use voluntary severance appropriately?
– Do you have optimum flexibility to retain the best?
– Is your discretionary compensation policy effective,
affordable and non discriminatory?
– Do you distinguish between “suitability of
alternatives” when assessing eligibility for
statutory and discretionary compensation?
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Changing terms and conditions
– Has this opportunity been explored as a preferable
alternative to job cuts?
– “There is little point having the best terms and
conditions if you don’t have a job or no company left
to pay them!”- Unite and GMB
– Are the changes that TUPE 2012 delivered fully
understood and utilised?
– Is the limited but valuable scope to achieve changes
to terms and conditions in a TUPE scenario fully
understood and factored into the change
management programme?
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Have Equal Pay risks been identified, assessed
and managed?
• Are Governance arrangements fit for purpose
and sufficiently open and transparent?
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Practical Considerations
• Who will run the service?
• Who will work in the service?
• Does the preferred model facilitate/restrict
potential savings?
Political considerations
• Major implications for Democratic control
– Access to NNDR relief eg 80%/20%;some VAT
relief
– Eligibility for Charitable Status
– Procurement implications
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Why & How Does Choice of
ASD Matter
Legal Considerations
• Procurement
– Contract for services- Part A/B distinction short lived
– Teckal
• Benefits- passport the service
• Can rule out eligibility for reliefs because control
retained
• Likely to constitute control for equal pay purposes
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Legal Considerations
• State Aid
– Might be difficult to cut umbilical cord with confidence
– New 2014 State Aid concessions only available if
provide selected in open and transparent way
• £2m pa Operating Relief
• £15m Investment Relief
• Charitable Status
– Choice of model affects eligibility
– Choice of model and level of resource can
affect ability to manage the governance
obligations
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Financial Considerations
• Significant!
Understand the key drivers and “select for
success”
www.emlawshare.co.uk
Making the Most of a Restructure
Compensation policy
• Statutory obligation for regular review
• 104 weeks maximum but policy limit
• Termination for “redundancy” or “interests of
efficiency”
– Are both covered in policy?
– Are terms defined?
• Is there a fair and defensible balance between
cost / benefits for under / over 55s?
www.emlawshare.co.uk
Making the Most of a Restructure
Redundancy policy
• Guide not a straight jacket
– Ensure Pool appropriate
– Implications of “ melting pot” approach
• Select for success
– Less of the same
• Select out of role
• Looking back
• Williams v Compair Maxim [1982] IRLR 83
– New and Different Roles
• Appoint into role- new terms and conditions?
• Looking to the future
• Darlington Memorial NHS Hospital _EAT 1995
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Making the Most of a Restructure
Redundancy policy
• Make your SAE policy “suitable”
– Consider setting restrictions on access to
discretionary compensation
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Changing For The Better
Securing effective change
• Why?
– Staff costs lion’s share of budget so key target for
savings
– Redundancy avoidance measure
• How?
– Collective Agreement
– Dismissal and Re-engagement
• Nicholls v Coventry CC [2009] All ER (D) 15 (Mar)
• What is your SOSR?
www.emlawshare.co.uk
Changing For The Better
Securing effective change
• Ask the Audience!
– Individual Agreement
– Pragmatic Responses
• The Motor Industry 2008
• “There is little point having the best terms and
conditions in the world if you don’t have a job or no
company left to pay them!” Unite and GMB 2008
• Local Authorities
• When?
– When necessary
• TUPE complications!
www.emlawshare.co.uk
Service Redesign in a TUPE
Scenario
Preliminary Considerations?
• Does TUPE apply?
• Is there a transfer of an economic entity?
– Is there an interruption to service delivery?
– Is there an organised grouping of employees
wholly assigned to the service?
• Does the current contract provide sufficient
protections on service handover!!!!
www.emlawshare.co.uk
Service Redesign in a TUPE
Scenario
• Risks if uncertainty over who will transfer
– Will there be a workforce to run the service on day
1?
– Will the transferee inherit too many staff?
– What is the impact of potential redundancy costs
on sustainability of new service?
• State aid implications if financial support an after
thought
• Consider due diligence of own arrangement and
consider requiring agreed protocol that exceeds
TUPE requirement
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
Since January 2014, greater scope to change
• Previously - if dismissals or changes to T’s and C’s
– “By reason of” transfer- always unlawful and void
– For a reason “connected with” transfer-unlawful only
if no ETO reason
• Little clarity as to whether “by reason of” or
“connected with” transfer
• Uncertainty increased risk and acted as inhibitor to
change
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
Since January 2014, greater scope to change
• Now ETO reason is the key consideration
– Provided the sole or principal reason for dismissal
or changes to T’s and C’s is an “economic ,
technical or organisational reason, entailing
changes in the workforce (numbers, functions,
location) dismissal not automatically unfair
• Scope to reach agreement
– Collectively after a year if no less favourable
– Individually provided ETO reason applies
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TUPE – Scope to Restructure
and Change T’s and C’s
• Transfer related restructures potentially fair
• Transfer related changes to T’s & C’s lawful by
agreement
• Where not agreed
– Consider dismissal and re-engagement on new
terms
– But ensure ETO reason “entailing changes in work
force” valid at time
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
• Beware Manchester University scenario
– Phased programme by agreement with Trade
Unions, driven by cost
– Restructure - voluntary severance – 200 job losses
– Subsequent need to change T’s and C’s by D and R
– Dismissals unfair as no ETO reasons at time
– Numbers/ functions/locations of workforce did not
change
• Plan a holistic approach to ensure ETO reason
prevails
www.emlawshare.co.uk
Maximising Employment
Flexibility (within the law)
Secondment
• Loan of employee by employer to another
organisation
• Designed to be short term
• Traditional TUPE avoidance route to overcome
– Uncompetitive salaries
– Risk of losing accrued service benefits in the event
of future redundancy exit
– Pension transfer issues
www.emlawshare.co.uk
Maximising Employment
Flexibility (within the law)
Secondment
• Where employee is assigned to service that
transfers, contract of employment transfers by
operation of law unless
– Formal objection under TUPE
– Celtec v Astley and Others [2006] 4 All ER 27
• Consider formal Retention of Employment
arrangements where business case supports this
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Cross employer comparison where employers are
“associated”
• “Associated” – where one employer is a company
of which the other, directly or indirectly, has
control
• Are LLPs indistinguishable from companies?
• Was the Council a “Single Source”, responsible
for difference in pay under Art 157 TFEU?
– Responsible for the inequality and which could
restore equal treatment
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Council had 4 out of 5 seats on Board of LLPs so
had “control”
• LLPs indistinguishable from companies for
purpose of s16 EPA
• Single Source– Not necessary to determine this but
– Implied that control that met Teckal test, was
sufficient to meet single source test
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Ensure any pay difference can be explained and
evidenced by reference to a Material factor
defence
• Where disparate impact in gender terms, also
necessary to objectively justify pay differences
www.emlawshare.co.uk
Pensions
• ‘A Fair Deal for Pensions’
Service providers must allow employees to
remain in their existing public service pension
scheme
• Best Value Authorities Staff Transfers (Pensions)
Direction 2007
Local Government Pension Scheme
• May qualify either as:
– Scheme employer; or
– Non-scheme employer as admission body
• Implications for New Joiners
www.emlawshare.co.uk
Governance in Times of Austerity
• A New Era
• More risk
• Different risks- as boundaries pushed and
sometimes crossed
• New deal for Officer/ Member accountability
www.emlawshare.co.uk
Governance in Times of Austerity
Scope for conflicts of interests
• Obligation for Council to deliver services and
balance budget
– As provider or commissioner
– Having regard to all stakeholders
– Beware over reliance on views of only some e.g.
trade unions
– Consider new ways to discharge consultation
obligations to widen stakeholder engagement
www.emlawshare.co.uk
Governance in Times of Austerity
Scope for conflicts of interests
• Recent emergence in misconduct in public office
prosecutions linked to officer conflicts
• Ensure Chief Officer Disciplinary and Grievance
Procedures and linked governance
arrangements in place and appropriate
www.emlawshare.co.uk
In Summary
Employment Matters!
• Key factor in delivering sustainable service
transformation
• Be part of preliminary debate about service
transformation options
• Shape the strategy
• Manage to facilitate not inhibit change
• Deliver the solutions!
www.emlawshare.co.uk
Social media – the
employment issues
Andrew Tomlinson
Solicitor, Weightmans LLP
Tel: 0116 242 8902
[email protected]
www.emlawshare.co.uk
Faye Reynolds
Solicitor, Weightmans LLP
Tel: 0121 200 5754
[email protected]
Introduction
• The importance of a Social Media Policy
• The “defences” raised by employees in context
www.emlawshare.co.uk
The Social Media Policy – why have
it?
a) Sets down rules on what is acceptable and
what is not
b) Gives Managers confidence when dealing
with the issue
c) Should ensure consistency of approach
www.emlawshare.co.uk
The Social Media Policy – what should it
contain?
•
Not allowed to make derogatory/negative
comments about:
-
Colleagues
The employer thereby damaging its reputation
End users
(even if made outside of work, but which affect the
employees’ ability to do his/her job)
www.emlawshare.co.uk
The Social Media Policy – what should it
contain? (continued)
•
That such comments will lead to disciplinary
action and may result in dismissal
•
Restrictions on internet usage
•
Monitoring of internet usage (data
protection/privacy issues)
www.emlawshare.co.uk
The Social Media Policy – how to
implement
•
Use of work place representatives or Trade Union
representatives
•
Be aware of impact on other policies such as:
a)
b)
c)
Disciplinary policy – gross misconduct
Equal opportunities policy
Bullying and harassment policy
www.emlawshare.co.uk
The employee “defences” in context
•
“I did not know we had a Social Media Policy so
you can’t get me into trouble”
Crisp v Apple Retail (UK) Ltd
(ET Case No 1500258/2011)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“My Facebook settings are private so only my
“friends” can see what I say so no harm done”
Preece v JD Weatherspoons
(ET Case No 2104806/2012)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“My Facebook settings are private so only my
“friends” can see what I say so no harm done”
Mrs J Reid v Royal Mail Group
(ET Case No 2803020/2011)
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The employee “defences” in context
(continued)
•
“My Human Rights mean I can say what I like on
Social Media sites”
Daniel Joseph Teggart v TeleTech UK Limited
(Northern Ireland ET Ref 704/2011)
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The employee “defences” in context
(continued)
•
“The comments did not identify my workplace so
how can I have brought the organisation into
disrepute?”
Whitham v Club 24 Ltd t/a Ventura
(ET Case No 1810462/2010)
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The employee “defences” in context
(continued)
•
I immediately removed my comments when I
found out it was wrong; I’m sorry”
Stephens v Halfords Plc
(ET Case No 1700796/2010)
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The employee “defences” in context
(continued)
•
“That is clearly my personal Twitter account, so
my employer does not need to get involved.”
Game v Laws
(UKEAT/0188/14)
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Conclusions
• Have a robust and flexible Social Media Policy
• Take each “defence” on its merits
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Restructuring
Kim Howell, Partner
Geldards LLP
www.emlawshare.co.uk
www.emlawshare.co.uk
Setting the Scene
Taking Tough Decisions
• Different mind set
– Extent of challenge
– Extent of options
– Timescale for delivery of outcomes
• All change!
www.emlawshare.co.uk
Understanding the Options
• Traditional responses
– Voluntary redundancies
– Collectively agreed changes
• Sustainable solutions
− Restructured services
− Affordable terms and conditions
− Sharing with thy neighbour!
www.emlawshare.co.uk
Understanding the Options
Identifying Solutions
• Relevant considerations
–
–
–
–
–
–
Business case/ reason
Powers and governance
Stakeholder consultation
Contingency planning
Assessing true cost of change versus status quo!
Identifying potential obstacles - legal pitfalls!
www.emlawshare.co.uk
The Legal Pitfalls
Identifying legal pitfalls
• Obligation or opportunity
– Redundancy vs Restructuring
• What you do; and
• How you do it
www.emlawshare.co.uk
The Legal Pitfalls
• Managing Redundancy Issues
• Legal principles
• Practical application
www.emlawshare.co.uk
Redundancy
•
•
•
•
•
•
•
Access to employment protection insurance
Statutory redundancy pay
Enhanced redundancy compensation
Access to unreduced pension
Collective consultation obligations-S188
suitable alternative employment obligations
A fair reason for dismissal
www.emlawshare.co.uk
Redundancy
“Redundancy” - S139 ERA 1996
• The employer has ceased or intends to cease
– To carry on the business for the purpose for which
the employee was employed
– Or to do so at the place so employed
• Requirements of business :– For employees to do work of particular kind;
– Or to do so at place so employed
– Have ceased or diminished, or are expected to do
so, either permanently or temporarily and for
whatever reason
www.emlawshare.co.uk
Redundancy
• What does this mean?
– Dismissal must be wholly or mainly attributable to
• Business closure by the employer
• Workplace closure by the employer
• Need for number of employees to carry out particular
work has diminished
• Need for work of a particular kind has diminished
www.emlawshare.co.uk
Redundancy
Redundancy Pay Costs
• Mandatory
– Statutory - Capped at £13,920
– Over 55’s:• Immediate access to unreduced pension (mandatory)
under LGPS
• Plus any discretionary pay
www.emlawshare.co.uk
Redundancy
Redundancy Pay Costs
• Discretionary (under Local Government
Regulations)
– Up to 104 weeks permitted but capped
– Under 55’s - X weeks full pay
– Over 55’s - variable re pensions strain gap with Under
55 limit
• Significant cost
• Relevant factor in cost reduction strategy!
www.emlawshare.co.uk
Expiry of Fixed Term Contracts
• 2002 Regs - greater protection for Fixed Term and
Limited Term contracts
– Included “task specific” contracts as FTC
– Removed waiver of right to redundancy pay
– Non renewal of FTC can create redundancy where
reason for non renewal meets definition in S 139 ERA
• Consider continuity of service between contracts and
between employers for LGPS!
• Consider unfair dismissal obligations and
SOSR
• Plan ahead re fair reason for non-renewal
www.emlawshare.co.uk
Redundancy
• Fair reason for dismissal
• Not selected for automatically unfair reasons;
• Is not unfair in all the circumstances- S98(4)
– Unlikely to be unfair if follow agreed / customary
procedure
– Duty to consult under S 188 TULRCA, a factor
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Collective Consultation
S188 TULRCA 1992
• Broad definition
– Applies to all dismissals not related to the
individual concerned
– Includes classic redundancy scenario
– Covers changing terms and conditions if dismissal
contemplated implementation mode
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Collective Consultation
S188 TULRCA 1992
• Applies when “proposing to dismiss”, “within a 90
day period”
– 20 or more affected - at least 30 day consultation
period
– 100 or more affected - at least 45 days
consultation period
– Before first dismissal takes effect
• NB “at a single establishment”
www.emlawshare.co.uk
“Establishment”
What is an establishment in a Local Authority
setting?
• No statutory definition
• Courts adopt a “ purposive” approach
– Will look at autonomy and resources
– Need not have legal, economic, technical autonomy
• Mills and Allen v Bullwich EAT 154/99 - yes
• MSF v Refuge Assurance EAT/1371/99 [2002]
IRLR 324 - no
www.emlawshare.co.uk
“Establishment”
What is an establishment in a Local Authority
setting?
• Autonomous unit with budget, resources and
decision making power- e.g. School
• Directorate responsible for multi-site offices?
• Corporate approach could be determinative
www.emlawshare.co.uk
The Woolworths Case
• Woolworths went into administration in November
2008
• Large scale redundancies
• Breach of information and consultation obligations
• Complaints to ET seeking protective awards
• Each store “separate establishment”
• Duty to inform and consult not engaged in respect
of stores with fewer than 20 employees
www.emlawshare.co.uk
The Woolworths Case
• Section 188(1) TULCRA 1992
• Employers are obliged to inform and consult
collectively where they propose to dismiss as
redundant 20 or more employees at one
establishment within a period of 90 days or less
• TULCRA incompatible with directive
• Not possible to interpret TULCRA purposively
– MSF v Refuge Assurance plc and others [2002]
IRLR 324
– Renfrewshire Council v Educational Institute of
Scotland [2013] IRLR 76
www.emlawshare.co.uk
The Woolworths Case
• EAT accepted that 188 TULCRA is more
restrictive than ECRD
• The words “at one establishment” should be
deleted from section 188 altogether
• If an employer is proposed to dismiss 20 or more
employees in any 90 period then the collective
consultation duty arises regardless of the location
of the proposed dismissals
• COA referred to the ECJ
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What a difference a year
makes!
• City of Edinburgh v Wilkinson and others
– Equal pay case
– Court of Session determined that Claimants were
not employed at the same establishment as their
comparators
– Overturned Scottish EAT decision
www.emlawshare.co.uk
What a difference a year
makes!
• Renfrewshire Council v Educational Institute of
Scotland (2012)
• Scottish EAT overturned decision that for
collective consultation purposes “establishment”
was Education and Leisure Services of Council
• Not individual schools
• EAT stated that this “flew in the face of reason
and was perverse”
www.emlawshare.co.uk
Renfrewshire Council
• The judge at first instance did not consider that a
school was a distinct entity
• Concentrated on contractual rather than factual
decision
• Rather than focussing on where the teachers did
their work, judge placed emphasis on place from
where employment was controlled.
www.emlawshare.co.uk
Renfrewshire Council
• EAT observations on meaning of “establishment”
• Decision is factually dependent
• Establishment is likely to be less than whole
undertaking
• Establishment connoted physical presence
• There must be sufficient links with other
establishments to recognise it as part of a larger
whole
www.emlawshare.co.uk
Collective Consultation
Collective consultation information
• Reasons
• Numbers and descriptions
• Total number of employees
• Proposed method of selection
• Proposed method of carrying out dismissals
• Proposed method of calculating any redundancy
www.emlawshare.co.uk
Collective Consultation
S188
• Requires meaningful consultation about:–
–
–
–
Avoiding dismissals
Reducing the numbers to be dismissed
Mitigating the consequences of dismissals
Must be undertaken with a “view to reaching
agreement”
• Does this widen the obligation to explore changes
to terms and conditions that could achieve similar
cost reductions?
www.emlawshare.co.uk
Collective Consultation
Reasons
• Must inform of genuine reason for dismissal, not
convenient sham
– Cost driven when claimed H&S reason for closure
was breach of duty!
• If reason outside S139 definition, note need to
establish SOSR
– Relevant to unfair dismissal
– Could avoid expectation of LGPS pension access
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Selection Issues
• Pool
• Criteria
– Selecting less of the same
– Appointing to something different
– Bumping!
• Validating the process
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Selection Issues
The Pool
• Composition of pool vulnerable to challenge
– Does the pool include all employees doing similar
work/interchangeable?
– Does pool include employees doing unconnected
work e.g. where different drivers for termination?
– Are there factors that indicate employee was
selected for pool for non relevant reasons?
– Should the pool be limited to a location?
– Should pool comprise all in department when
restructuring?
– Should be consistent with approach with
establishment
www.emlawshare.co.uk
Selection Issues
Redundancy Selection
• Williams v Compair Maxam 1982 [IRLR] 83
– “Criteria should not be based on opinion of
selector”
– “Should be objectively assessed”
– Matrix approach
– Looking back?
www.emlawshare.co.uk
Selection Criteria
• Typical selection criteria
– Training
– Knowledge/experience/qualifications
– Key skills and competencies (must define precise
nature)
– Attendance (consider period carefully and reasons
for non-attendance)
– Disciplinary records (consider period carefully)
– Performance (must define precise nature)
– Length of Service (consider carefully – age
discrimination)
www.emlawshare.co.uk
Restructuring
• Reshaping services
–
–
–
–
New roles
New responsibilities
New terms and conditions
Selection implication
www.emlawshare.co.uk
Restructuring Selection
• Darlington Memorial NHS Hospital v EdwardsEAT/678/ 95
– “ET direction that choice of staff for new posts must
be based on similar principles to selection for
redundancy was wholly mistaken”
– “Where new jobs/different job description,
employer most certainly not under duty to carry out
the type of exercise that would be required when
deciding who to select for redundancy”
• Looking ahead?
www.emlawshare.co.uk
Collective Consultation
When Must Consultation Begin?
• S188 obligation does not arise until a proposal to
dismiss is formulated
• Not triggered when consulting about
implementing changes by agreement
• Once dismissal proposal formulated must begin
– “In good time”
– Before the dismissals take effect
• Unison v Leicester County Council 2006
• Once there is a “proposal”, consultation must
begin speedily thereafter!
www.emlawshare.co.uk
Alternative Employment
• General
– Legal duty for employer to consider “suitable
alternative employment” (“SAE”)
– Extend possibility for SAE to all employees within
pool of selection
– Consideration of SAE should be made during
consultation process and following formal notice of
redundancy dismissals
www.emlawshare.co.uk
Alternative Employment
• Trial periods
– If terms of employment differ – employee entitled to
at least 4 weeks without prejudice to redundancy
rights
• Refusal of alternative employment
– If employee unreasonably refuses – loses right to
redundancy payment
– Reasonableness depends on terms and conditions
of alternative employment as well as employee’s
personal reasons
www.emlawshare.co.uk
Notice
When can notice be served?
• ECJ Junk case – not before end of consultation
process???
• Cautious approach- only when consultation period
expired
• Robust approach- to coincide with end of
consultation period
• Sensible approach- not before meaningful
consultation has either achieved agreement or
has been exhausted
• Likely to vary with circumstances
www.emlawshare.co.uk
Unfair Dismissal Implications
• Costs
– Compensatory award -
– Basic award – Failure to inform and consult -
• Hassle factor
• Reputational risk
• Legal costs
www.emlawshare.co.uk
£76,574
(Or 12 months
pay if lower)
£13,920
Up to 90 days
pay
?
?
?
Cost Implications
Cost implications of alternative approaches
• Traditional approach
– Might exit the wrong people
– Might miss opportunity to redesign services
• Restructure approach
– Opportunity to shape wider service, affecting whole
groups
– Greater flexibility to select for the future
– Redesign terms and conditions for sustainability
and efficiency
– Might avoid redundancy pay by SAE
• Acceptance or unreasonable refusal !
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Practical Challenges
• Select the cost saving measure carefully
• Make informed decisions
• Plan ahead
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What/when/how/who?
The AA Route Map
Identifying legal and practical pitfalls
What do we have vs what do we need
Incentivise consensus
Contingency plan
• Ensure solution still “in date”
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Any Questions?
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M: +44 (0) 7918 673746
E: [email protected]
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