Workplace Issues Learning from the Frontline

IER

20th March 2013

Introduction (Slide 1)

Government response to consultation onchanges to collective redundancies rules December 2012:• What the proposals are?• What employers will still have to do?• How unions can respond/impact for trade

unions.First consider current legislation, s188 TULR(C)A1992.

Collective Consultation – an Overview (Slide 2)

S188 (1):

• ‘Where an employer proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected’

– GMB –v- MAN Truck & Bus UK Ltd [2000] IRLR 636

Consultation – “in good time”

The consultation shall begin in good time and in any event :

a) Where the employer is proposing to dismiss 100 or more employees…at least 90 days; and

b) Otherwise, at least 30 days

Before the first of the dismissals takes effect

Collective Consultation – an Overview (Slide 3)

S188 (2):Consultation must include:• Avoiding dismissals;• Reducing the number of dismissals; and• Mitigating the consequences of dismissals…With a view to reaching agreement Junk v Kuhnel[2005] IRLR 310 – negotiate

UK Coal Mining Ltd v NUM [2008] ICR 163 – economic reasons

.

Collective Consultation – an Overview (Slide 4)

S188(4) information:1. The reasons for the proposals to dismiss;2.The numbers and descriptions of employees

proposed to be dismissed; 3.The total number of employees;4.The method of selection;5.The method of carrying out the dismissals;6.The method of calculating redundancy pay;7. the number of agency workers including the type

of work they do and where they do it.

Government proposals (Slide 5)

Government claims that proposals for reform to pursue 3 objective:

• Improve the quality of consultation

• Improve the ability of employers to respond to changing market conditions

• Balance the interests of employees who are made redundant with those who remain

Government Response – (Slide 6)

i. Consultation period where 100 or more employees halved from 90 to 45 days;

ii. Definition of establishment to be included in guidance;

iii. Expiry of fixed term contracts excluded;

iv. Non-statutory guidance on a number of key areas affecting collective redundancies

TULR(C)A 1992 (Amendment) Order 2013 in force 6 April 2013

What employers will still have to do? (Slide 5)

i. Consult with appropriate reps where an employer proposes to dismiss between 20 and 99 employees for 30 days;

ii. Enter into meaningful negotiations as per s.188(2);

iii. Provide information under s.188(4)

Protective Award – 90 days pay

Selection for Redundancy (Slide 9)

Two issues on the extent of the employer’s obligation;

• Subjective/objective criteria for selection Mitchells Lancaster (Breweries) Ltd v Tattersall UKEAT/0605/11 -Nicholls v Rockwell Automation Ltd UKEAT/0540/11

• What is the test where employees are required to apply for posts as part of a selection process Cumbria NHS Trust v Steel UKEAT 0635/11

What UNIONS can do (Slide 10)

1. Remind employers:i. that the 45 day consultation period is a minimum;ii. of their obligation to enter into meaningful

negotiations under s.188(2);iii. that they may be at risk of claims for a protective

award starting with 90days gross pay;

2. Argue less favourable treatment where fixed term employees are selected for redundancy;

3. Watch for employers who try to break down redundancies so that there are less than 20 redundant at one establishment.

Conclusion (Slide 11)

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