Archive for the ‘Redundancy’ Category
By Liam - Wednesday, June 11th, 2008
Both the Trade Union and Labour Relations (Consolidation) Act 1992 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 contain provisions requiring employers to consult collectively about redundancies and measures envisaged as a consequence of the transfer respectively.
The penalty for failing to comply with such a requirement is up to 13 weeks’ pay for each employee within the description of employees in respect of which the protective award is made (the description of employees could be all employees being made redundant or all employees of a particular grade or classification - this will vary on a case by case basis).
The 13 weeks’ pay is subject to the same statutory cap as is used for redundancy pay. This means that the maximum protective award is currently £330 x 13 = £4,290.00 x number of employees who fall within the description in respect of which the award was made.
This could clearly be considerably less than uncapped pay x 13 weeks, particularly for high earners and therefore is a useful fact to know when assessing potential liability in a mass redundancy/mass TUPE exercise.
Posted in Redundancy, TUPE | No comments »
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By Philip - Tuesday, May 20th, 2008
The case reported here illustrates the difficulty Tribunals can get into when faced with two issues:
- The statutory dismissal procedure (aka rebarbative and soon to be redundant)
- The unrepresented Claimant.
In this case the Claimant had not put forward the claim that the statutory procedure was not followed in her ET1 but perhaps picked up on the idea during the hearing, following interventions by the Tribunal. The EAT in Scotland ruled that the right to appeal against dismissal only has to be communicated, but there is no requirement under the statutory procedure for such communication to be in writing.
Most employers would be best advised to wear belts and braces and communicate the right of appeal in writing in the dismissal letter. By putting the right of appeal in writing any subsequent point about what was and was not communicated during the meeting is neutered. Neutered points bear no fruit.
The EAT also makes some interesting observations about how parties without representation should be treated during the hearing.
Posted in Employment Tribunal Procedure, Redundancy, Statutory Procedures | No comments »
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By Sarah - Thursday, March 27th, 2008
One of the tail tail signs of problems with the economy is a rise in redundancies. At PJH Law we have seen a slight increase lately in employees seeking advice following redundancy situations and a slight rise in our employers cost cutting and reducing their head count in certain areas.
This is in line with the CIPD Labour Market Survey which said that this quarter 2 out of 5 employers planned to make redundancies, which was up 8% on the final quarter of 2007. Certainly some companies are experiencing the credit crunch in real terms but as to what is around the corner, there is a conflict as to views on whether we are heading for a recession or not? Watch this space!
Posted in Redundancy | 1 comment »
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By Philip - Wednesday, February 6th, 2008
The EAT in Look Ahead Housing and Care Limited v Odili & Mendes has once again confirmed, following British Aerospace v Green, that it is not the job of the Employment Tribunal to substitute its view for that of the employer when considering the fairness of a redundancy dismissal.
The Tribunal should consider whether the employer’s decision to dismiss was one that a reasonable employer would have taken in the circumstances. This is different to the question of whether the Tribunal would have selected the same person for redundancy.
Neither is the correct test whether there was bad faith on the part of the employer. According to both the EAT and the Court of Appeal in Mercy v Northgate HR, bad faith is hard for an employee to establish and is more than he is required to establish to show unfairness.
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By Liam - Thursday, January 3rd, 2008
For dismissals occurring on or after 1 February 2008, the maximum compensatory award for Unfair Dismissal is set to increase to £63,000.00 and the cap on a week’s pay (used to calculate Statutory Redundancy Pay and the Basic Award for Unfair Dismissal for those who earn in excess of the cap) is set to increase to £330.00.
Various other limits are also increasing, such as the rate for guarantee pay and the minimum amount for Basic Awards in certain types of case.
Full details can be found here.
Posted in Redundancy, Redundancy Payment, Unfair Dismissal | No comments »
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By Philip - Tuesday, October 23rd, 2007
An eminently sensible decision on collective consultation is reported here, although probably a none too popular decision with our hr readers . A Mining Company announced a site closure and made the miners redundant. The mining union brought a claim for a protective award and won a maximum 90 day award for all the protected group.
The Mining Company appealed the decision (perhaps mining companies just carry on digging, especially when they are in a hole!). The union cross appealed on the discrete point as to whether there was a need to consult about the reasons for the redundancy, ie the site closure.
The EAT dismissed the employers appeal and ruled on the trade union’s appeal that there was a need to consult collectively on the reasons behind a site closure as the collective consultation procedure requires the employer to submit in writing the reasons for the redundancies and consult with a view to reaching agreement and to consult with a view to avoiding the dismissals.
What the EAT is saying is that an employer cannot simply go through the motions of consultation, if the site closure is based on an economic reason, there needs to be meaningful discussion with a view to reaching agreement on that issue.
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By Liam - Thursday, October 18th, 2007
The recent decision in Davies v Farnborough College of Technology illustrates the importance for employees bringing an unfair dismissal claim alleging an unfair selection procedure, to consider what difference the unfair selection procedure has made. In order to get a financial award of any value, the unfair procedure must affect the outcome of the redundancy process.
In Davies, Mr Davies was scored at 25%. The other employees in the pool were scored at over 43% and over 50%. Where scores are this far apart, it is difficult to argue that an unfair selection procedure has changed the outcome. Accordingly, although the dismissal was unfair, no compensatory award was made.
Posted in Redundancy | 2 comments »
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By Philip - Tuesday, September 25th, 2007
In redundancy situations, the 4 week trial period is a tricky section of law to navigate through.
Put simply there is a statutory right to a 4 week trial period if a suitable offer of employment has been made within 4 weeks of a contract coming to an end through redundancy. If accepted, the employee and the employer have 4 weeks to declare whether the trial is a success or not. If it is not a success the employee defaults back to redundancy and receives the redundancy payment that would have been received had the offer of alternative employment not been accepted.
What causes some difficulty is what the situation is where the employee declares the trial unsuccessful outside the four week trial period.
The case reported here gives an unequivocal answer, not even a shopping trip to the stores pictured above will save the redundancy payment. If you want to declare the trial unsuccesful you must do it within the statutory 28 days of the trial period. If you are outside that time frame, tough.
Posted in Redundancy, Redundancy Payment | No comments »
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By Liam - Tuesday, August 21st, 2007
Back in March, this blog reported the EAT decision in Mercy v Northgate HR Ltd (see http://www.pjhlaw.co.uk/blog/individuals-can-not-bring-a-claim-for-a-protective-award/).
Leave to appeal this important decision has been granted by the Court of Appeal.
Will the Court of Appeal overturn the decision of the EAT and hold that an individual (as well as a union or elected representatives) can bring a claim for a protective award in redundancy cases because of a failure (that affected the individual) to consult with representatives in accordance with TULR(C)A 1992?
The case should be heard before the Court of Appeal later this year or early in 2008 - watch this space for more news!
Posted in Redundancy | No comments »
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By Philip - Monday, July 16th, 2007
Section 188 of TULRCA is a labyrinth in which unwary employers (and advisers) can get caught. My old muckers at the EEF were involved in a case involving the application of this section.
Section 188 obliges employers to consult unions (or elected representatives) where there is a proposal to dismiss 20 or more as redundant.
This case illustrates two points:
1. In reckoning whether the employer is proposing to dismiss 20 as redundant, you include all redundancy dismissals within a 90 day period. The temptation to salami slice the redundancies into 3 batches of 7 over 3 months is removed. If an employer makes 7 redundant, in January,7 in February and a further 7 in March the section is (or should be)engaged. The law on consultation on redundancies, although emanating originally from EU, does not like salami slicing.
2. In reckoning whether the employer is proposing to dismiss 20 as redundant, you include any employee who has volunteered for redundancy, as a voluntary redundancy amounts to a redundancy dismissal. So agreeing to be sliced by the salami slicer amounts to a redundancy dismissal, if I may extend the analogy to breaking point.
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