A contribution to the discussion and practice of avoiding compulsory redundancies by a fellow worker in Cymru. If you would like to get in touch pop an email to cymruwales [at] iww [dot] org [dot] uk.
The first and most important point is to organise collectively. After all, “An injury to one is an injury to all.” The IWW offers Organiser Training to equip you with the skills to organise at work. You can also find basic guidance on the IWW website, and from an IWW pamphlet here.
The Bosses have legal duties
Amongst which are:
1) Consultation of representatives
‘If your employer is considering making more than 20 people redundant over a 90-day period, they must, by law, consult representatives of employees who are affected directly or indirectly by the possible redundancies. In many cases, redundancies may affect the entire workforce.
If your employer recognises a union, then the consultation should be with the union. If not, your employer must consult with elected employee representatives. Employee representatives may either have been elected specially to be consulted on the proposed redundancies or may be part of an existing elected representative body such as a staff council.
The agenda for consultation must include ways of avoiding redundancies or of reducing the numbers affected.’ (1)
‘Employers have a duty to consult and inform employees when there is a threat to the business. Where possible, employees and trade unions should use the requirements for meaningful information and consultation (under Regulation 20 of the Information and Consultation of Employees Regulations) to influence decisions being taken about the future of the business.’ (4)
2) Meeting with you personally
‘If your employer is considering making you redundant they should hold a meeting with you to discuss the reasons for the redundancy, why you have been selected, and to consider whether there is another job you can do. You have the right to be accompanied at this meeting by a trade union official or a colleague. If your employer does not meet you then your dismissal may be unfair legally and you may be entitled to compensation.’ (1)
Possible ways of avoiding compulsive redundancies:
1) Persuasive language
Use the boss’ language to build your case for avoiding compulsive redundancies:
- ‘The option of making employees redundant… is usually the option of last resort,’ (7)
- The employer must consult “in good faith”, that is, with a view to reaching agreement. (1)
- Ask if the employer acting ‘reasonably’ (in the face of claims of unfair dismissal.)
- ‘if employers proceed with redundancies, they will expose themselves to legal claims and find that relationships are irretrievably damaged… Redundancies will be costly and may result in legal claims against employers. Making redundancies may give rise to significant costs and litigation risks for employers. If an employer fails to comply with the duty to collectively consult, redundant employees have a potential claim for a protective award in an employment tribunal. The maximum protective award is 90 days’ (actual gross) pay for each affected employee. When an employer makes large numbers of employees redundant and fails to consult properly, there is significant financial exposure for them’. (4)
- ‘Protecting staff will protect the future of the business… Keeping good relations with staff will contribute to securing the future of the business when the [Covid 19] crisis is over’. (4)
- ‘protecting talent pools and employee relations.’ (5)
- ‘avoid future recruitment costs when the business is ready to grow again’ (5)
- ‘Further issues of commerciality – whether it makes financial sense to react to an undoubtedly difficult, but relatively short term, situation with a redundancy exercise – and morality (is this the best way to treat a workforce that has served the organisation for many years while the going was good?) may also play a part in an employer’s thinking.’ (7)
2) Alternative actions to avoid compulsory redundancy
- Furlough – ‘many employees are likely to agree to be furloughed under the job retention scheme, making good relations between employees and employers easier to maintain…. There is a possibility that where an employer chooses to make an employee redundant rather than “furloughing” them under the government scheme, an employment tribunal would find the employer had not behaved fairly over the dismissal. …an employer has a duty to consult on ways to avoid redundancies. It’s arguable that failing to make use of the scheme amounts to a failure to comply with this duty’. (4)
- Seeking applicants for voluntary redundancy.
- Improving redundancy payments to encourage volunteers.
- Seeking applicants for early retirement.
- Seeking applications from existing staff to work flexibly – ‘Flexible working encompasses a whole variety of arrangements, not just part-time working. These include: job sharing, home working, term-time-only working, and flexi-time schemes.’ (6)
- Recruitment freeze: filling vacancies elsewhere in the business with existing employees.
- Reduce working hours – short-time working or temporary lay-offs – ‘in some workplaces all staff have volunteered to work fewer hours in the knowledge that trading conditions may improve in the future.’ (1)
- Offers of alternative work – to provide ‘suitable alternative employment’ – ‘They should consider whether employees who are likely to be affected by redundancy can be offered suitable alternative employment within the same organisation or in an associated company’. (1) ‘Employees who accept an offer of alternative work are allowed a 4-week trial period to see if the work is suitable. If you both agree that it is not, they can still claim redundancy pay. The trial period can be longer than 4 weeks if you agree this in writing.’ (2)
- Reduce the working week. ‘Many businesses are saving money and keeping on employees by seeking agreement to operate on a four-day week for agreed periods. It is important to regularly review the situation so that a return to full time working arrangements can take place at the earliest opportunity’. (3)
- Use of Sabbaticals. ‘Sabbaticals are often regarded as an important part of an employee’s career development, and may be granted for a variety of different reasons including study, research, travel or voluntary work’. (3) ‘BT was one of the first, way back in 2009, when it offered a year’s sabbatical on 25 per cent pay to avoid further redundancies, in the same way you would offer or invite applications for voluntary redundancies.’ (5)
- Government support: ‘There are many sources of government support available to businesses to help them avoid making coronavirus-related redundancies. This includes support for deferring VAT payments, paying sick pay, business rate support and cash grants for some sectors, a business loan scheme, a corporate financing facility and protection from eviction for commercial tenants. Find out more from Gov.uk (4)
3) If contracts are varied
- ‘If your employer wishes to change the terms of your contract – for example by changing your working hours or patterns of attendance, by purporting to lay you off or put you on short-time working for a period of time, or by changing your pay or other terms and conditions of your employment – the change will only be lawful if you or your union agree to it. An unauthorised, one-sided variation is a breach of your contract of employment’. (1)
- ‘Where consent is given, it is advisable to clarify a number of points: will the new arrangements be on a permanent or temporary basis? If temporary, how long? Will there be a trial period? Will the employee have a right to return to the previous arrangements after a certain period?’ (6)