There has been a great deal of press coverage about the Government’s proposal to halve the consultation period for large scale redundancies from 90 days to 45 days.
According to employment relations minister Jo Swinson (yes, I’d never heard of her either until now):
The process is usually completed well within the existing 90-day minimum period, which can cause unnecessary delays for restructuring and make it difficult for those affected to get new jobs quickly. Our reforms will strike an appropriate balance between making sure employees are engaged in decisions about their future and allowing employers greater certainty and flexibility to take necessary steps to restructure.
However, Brendan Barber of the TUC countered this:
The last thing we need is for the government to make it easier to sack people. Unemployment has not gone as high as many feared because employers have worked with unions to save jobs, even if it has meant sharing round fewer hours and less work. Continue reading
In United States of America v Nolan, the European Court of Justice has confronted the combined forces of redundancy procedure and semantics. Perhaps overfaced with such a powerful combination it has declined to give a ruling in the long running saga of whether the USA was in breach of an obligation to inform and consult employees before closing an army base situated in the UK, because although UK law does not exclude public bodies from the operation of domestic rules on redundancy consultation, the European directive on collective consultation expressly does make such an exclusion. The Court of Appeal had asked it to determine the point at which the duty to consult is triggered. While the UK legislation refers to redundancies being "proposed" – EU law uses the term "contemplated"; and so uncertainty has arisen about when, exactly, the duty to consult is triggered. The point therefore remains to be determined by the Court of Appeal.
As is usual with European cases the judgment of the Court was preceded (last March) by the Opinion of the Advocate General (AG). The AG was concerned that, above all, the obligation to consult under TUPE should not be triggered "prematurely". This seems to be an entirely laudable concern, taking into account that employees might be unnecessarily worried about a potential transfer, even though that transfer might not ultimately happen. However, that appears to be at odds with the European reference to redundancies being "contemplated" which implies that, at that stage, the decision to make people redundant has not been finalised.
The counterpoint to that is that a consultation should not take place too late, so that it is in effect a sham. What is the point of a collective consultation when the decision to make people redundant has already been taken, i.e. when redundancies are "proposed"?
City traders may not spring to mind as the most deserving of sympathy but spare a thought for those who were unable to access their offices today.
According to a report in today’s Times (behind paywall) about 100 traders turned up at work this morning only to find that their passes had been deactivated. They were met in reception by HR staff who gave them bags containing their personal belongings and were told that they would have two weeks’ paid leave, following which they should return to collect their redundancy payments.
Evidently, UBS have decided entirely to disregard proper redundancy procedure which requires notification to employees that they are at risk of being made redundant as soon as the possibility arises, as well as meaningful consultation which should include consideration of alternatives to redundancy. Continue reading
Two areas have been flagged for possible changes in the future. There are “calls for evidence” on both TUPE and redundancy consultation processes.
Under the current Regulations TUPE places an obligation on both the transferor and transferee to provide information to, and to consult with, the representatives of their respective employees who may be affected by the transfer.
This can include employees who are not part of the transfer, but who are affected by the transfer.
TUPE also has the effect of transferring trade union recognition agreements, as long as the transferring group of employees maintains a distinct identify from the rest of the transferee’s business.
The transferor and transferee must inform and consult the recognised trade union. If there is no recognised trade union, the employees must be given the opportunity to elect their own representatives. Continue reading