Redundancy and consultation - employment law advice?
Discussion
Sorry, but this is going to be a little long!
It's looking quite likely that I'll be made redundant at the end of March - we're currently in the group stages of consultation, but given the number of roles that will be put at risk there won't be many people left by the time they're done!
The company need to deliver a project or two that run beyond the period of individual consultation. The company stance appears to be that the "minimum" term for individual consultancy is 30 days, but that this could run on for longer for some individuals.
Is this something that I have to accept? It seems to me that if they effectively be telling me that I'd be made redundant in (say) three months time, they should compensate me for this in some way. The suggestion from the company is that if I were to find another job and resign within the individual consultancy period I would lose any redundancy payment.
Whilst having a job is better than not having one, and a transition from one job that's ending on to another with no break could be nice, it would be annoying to not be "paid off" just because the company wanted me to hang around for a bit.
Does anyone know what my options are in this area? Surely they can't extend the period of individual consultation to suit themselves, effectively putting me on a short term contract without the additional pay I'd expect for a contracting role?
Can they really not pay redundancy money if I were to resign before the individual consultation period is up? Would there be any recourse under constructive dismissal (or something else) as my job is untenable or something?
Any pointers will be gratefully received!
It's looking quite likely that I'll be made redundant at the end of March - we're currently in the group stages of consultation, but given the number of roles that will be put at risk there won't be many people left by the time they're done!
The company need to deliver a project or two that run beyond the period of individual consultation. The company stance appears to be that the "minimum" term for individual consultancy is 30 days, but that this could run on for longer for some individuals.
Is this something that I have to accept? It seems to me that if they effectively be telling me that I'd be made redundant in (say) three months time, they should compensate me for this in some way. The suggestion from the company is that if I were to find another job and resign within the individual consultancy period I would lose any redundancy payment.
Whilst having a job is better than not having one, and a transition from one job that's ending on to another with no break could be nice, it would be annoying to not be "paid off" just because the company wanted me to hang around for a bit.
Does anyone know what my options are in this area? Surely they can't extend the period of individual consultation to suit themselves, effectively putting me on a short term contract without the additional pay I'd expect for a contracting role?
Can they really not pay redundancy money if I were to resign before the individual consultation period is up? Would there be any recourse under constructive dismissal (or something else) as my job is untenable or something?
Any pointers will be gratefully received!
Oh, of course - yes. There are 51 individuals at risk.
In terms of the way they're doing this, there's a three week "group" consultation process that we're currently going through, followed by a 30 day "individual" consultation process where the actual people in the roles at risk are told it's likely to be them, and given assistance to find a job elsewhere in the company, tart up their CV, etc.
Given that this is a pure cost cutting/off-shoring exercise, it's unlikely that anyone will find roles within the company.
ETA: in terms of individuals likely to be on projects that are ongoing, I'd guess at 5-10.
In terms of the way they're doing this, there's a three week "group" consultation process that we're currently going through, followed by a 30 day "individual" consultation process where the actual people in the roles at risk are told it's likely to be them, and given assistance to find a job elsewhere in the company, tart up their CV, etc.
Given that this is a pure cost cutting/off-shoring exercise, it's unlikely that anyone will find roles within the company.
ETA: in terms of individuals likely to be on projects that are ongoing, I'd guess at 5-10.
From what you write there is little within the process that is wrong. The consultation process is just that. It is not a period where at the end people automatically leave. Unless you work to the specified date then you can lose all your redundancy entitlement. If you choose to leave earlier then you are in effect resigning as your role still exists and still has to be done. What you will find though is that ina number of cases the date has an element of flexibility but you will have to ask the questions ie make use of your consultation period. The company will still have to serve the relevant notice. If the contracts allow for pay in lieu then the company may go down this route.
edc said:
From what you write there is little within the process that is wrong. The consultation process is just that. It is not a period where at the end people automatically leave. Unless you work to the specified date then you can lose all your redundancy entitlement. ... The company will still have to serve the relevant notice. If the contracts allow for pay in lieu then the company may go down this route.
Damn. I was hoping that there may be some sort of get out clause here, but it seems not! The company is planning to pay in lieu of notice, so at least there should be some form of "leaving bonus".The main thrust of my question is basically whether the company can use the individual consultancy period as (essentially) a really extended notice period. From what you've written it sounds as though they can.
DanL said:
Damn. I was hoping that there may be some sort of get out clause here, but it seems not! The company is planning to pay in lieu of notice, so at least there should be some form of "leaving bonus".
The main thrust of my question is basically whether the company can use the individual consultancy period as (essentially) a really extended notice period. From what you've written it sounds as though they can.
The company should give notice after the consultation period, not before or during, otherwise what is the point of the consultation and when do you as employees get the chance to suggest alternatives? The main thrust of my question is basically whether the company can use the individual consultancy period as (essentially) a really extended notice period. From what you've written it sounds as though they can.
As an employer you are almost in a no-win situation as 1) you can go into consultation as early as possible, be open, upfront and enter into some discussion, look for ways to mitigate redundancies etc. The employees will then probably moan about being de-motivated and in dead-man's shoes etc; 2) do all of the 'discussion' about proposals behind closed doors, hold back all information, go straight into and out of consultation and have leavers straight away. Everyone is for the most part none the wiser and the employees work as hard as usual but will moan that they have little notice and no involvement.
edc said:
The company should give notice after the consultation period, not before or during, otherwise what is the point of the consultation and when do you as employees get the chance to suggest alternatives?
I take your point - however, we've been told that the group consultation is when we get to suggest alternatives to the proposed roles going. I understand that the individual consultancy period is the time we'd get to put ourselves forward for alternative roles in the company, should any suitable ones exist.As this is a cost cutting exercise, however, realistically we all know that the individuals identified are likely to be out of a job at the end of the consultation period. It seems there's no fixed maximum time that this period can last though - it seems a little unfair that a person can know they'll be out of a job when the consultation period ends, but be expected to continue working until some nebulous point in the future at which time their contract will be terminated.
Still, arguably it's better to be working than not!
Thanks for your input into this - it's always nice to have an unbiased (and more informed!) point of view!
fergywales said:
The employer must specify the length of the consultancy period, are you saying they have left it open-ended?
They've said the following:Group consultation up until the end of this month.
Individual consultation from that point onwards, for a minimum of 30 days.
They have repeatedly suggested that for certain individuals this individual consultation period may well extend beyond 30 days, and I presume that this will be "agreed" between the individuals concerned and the company at the point this section of consultation starts.
However, can the company force agreement on an employee? From a personal point of view, I'd rather be made redundant after 30 days with a pay off and then hired back on a short term contract at "proper" contract rates if the company feel they need me for longer than the time they've allowed themselves.
However, the inference drawn from what the HR rep has been saying is that they'd want to use this consultation period to retain people for longer than the 30 day minimum time in order to get a project delivered, and then to let them go, which seems a bit cheeky to me.
I suppose their counterargument would be that they're not asking people to work their notice...
From a simplistic point of view if the work is still there certain roles may not yet be redundant. Similarly, why would the company make roles redundant and re-engage those same people to do work which they would have done in their permanent role? In this situation the redundancy is not a geuine redundancy and if you were paid tax-free sums then you may become liable for deductions. It could also be deemed that any re-engagement via an umbrella or Ltd company is also a sham. Redundancy is a tough and awkward situation but if you really want out that badly or want more money then you have to go somewhere else off your own steam.
DanL, by what you have said, they are leaving themselves open to claims for constructive dismissal, by inferring that they disregard the rights of them employee to as stable a redundancy process as possible over the actual needs of the business. Whilst redundancy is an option to protect the business, the employer has a duty of care to the employee in involving them in the process.
Once the individual consultancy begins, you need to have the employer, once they have confirmed that your role will be redundant once the final project is complete, to set a firm date. If they resist, and you are fully aware that you will, at a not-yet-confirmed date, have no role with the employer, there is no risk to you in spelling out clearly that you feel that you have grounds for a claim for constructive dismissal as they have not upheld their duty of care to you. You cannot lose anything, as for the employer to act to your detriment would only strengthen your position of a potential claim.
Once the individual consultancy begins, you need to have the employer, once they have confirmed that your role will be redundant once the final project is complete, to set a firm date. If they resist, and you are fully aware that you will, at a not-yet-confirmed date, have no role with the employer, there is no risk to you in spelling out clearly that you feel that you have grounds for a claim for constructive dismissal as they have not upheld their duty of care to you. You cannot lose anything, as for the employer to act to your detriment would only strengthen your position of a potential claim.
edc said:
From a simplistic point of view if the work is still there certain roles may not yet be redundant.
I think I may have been considering this backwards, and this comment rather brings that home. Yes, clearly if they require people to work on projects then their roles are not yet redundant, regardless of how keen the company may be to get the ball rolling and to try and cut once rather than several times. This is, I think, the point I'll make to our employee rep as part of the group consultation. Thanks for adding some clarity - at the moment I'm not thinking as clearly as I usually would!fergywales said:
Once the individual consultancy begins, you need to have the employer, once they have confirmed that your role will be redundant once the final project is complete, to set a firm date. If they resist, and you are fully aware that you will, at a not-yet-confirmed date, have no role with the employer, there is no risk to you in spelling out clearly that you feel that you have grounds for a claim for constructive dismissal as they have not upheld their duty of care to you.
Thanks Fergy - I had a nagging feeling something wasn't quite right and that there should be some sort of recourse available.Whilst I'd be keen to avoid any tribunal related stuff, it's nice to know that they'd have to set a firm end date rather than "when the project's delivered", which is probably what they'd prefer.
It's more of knowing where I stand in order to be able to plan things that's important for me, rather than anything else - with a firm end date I could plan around that, and knowing that they should provide me with one is half the battle.
Once again, thanks to both for your input!
The company will have to give you a final date but in fairness there is no obligation to give this date during the consultation period. The consultation period is about answering some of: the predicament, what needs to be done, how they have initially planned to do it, when they expect things to happen, employee suggestions/responses. There is nothing to stop the company completing the consultation period but giving regular updates in terms of progress and anticipated dates. Unfortunately, as an employee, if you don't want to work to the prescribed leaving date that is your prerogative but you may forfeit any entitlement to a redundancy payment. To say that you have a good claim for constructive unfair dismissal based on an employee not having a defined leaving date during a 30 day consultation period would be pushing it.
edc said:
The company will have to give you a final date but in fairness there is no obligation to give this date during the consultation period. The consultation period is about answering some of: the predicament, what needs to be done, how they have initially planned to do it, when they expect things to happen, employee suggestions/responses. There is nothing to stop the company completing the consultation period but giving regular updates in terms of progress and anticipated dates. Unfortunately, as an employee, if you don't want to work to the prescribed leaving date that is your prerogative but you may forfeit any entitlement to a redundancy payment. To say that you have a good claim for constructive unfair dismissal based on an employee not having a defined leaving date during a 30 day consultation period would be pushing it.
I disagree with you in this instance. If the company is making a supposition that, once the ongoing project is complete, the role is redundant, then the duty of care to the employee dictates that the employer must also be aware of the anticipated or actual end date, and that at this date, the role is entirely redundant within the company. In the same circumstance, they must convey this to the employee, as to withhold this would make the consultation period itself wrongful, as the role is not redundant.At an ET, the claimant would simply have to show that the role was not redundant at the time of the consultation period and would have grounds to claim for constructive dismissal.
fergywales said:
I disagree with you in this instance. If the company is making a supposition that, once the ongoing project is complete, the role is redundant, then the duty of care to the employee dictates that the employer must also be aware of the anticipated or actual end date, and that at this date, the role is entirely redundant within the company. In the same circumstance, they must convey this to the employee, as to withhold this would make the consultation period itself wrongful, as the role is not redundant.
At an ET, the claimant would simply have to show that the role was not redundant at the time of the consultation period and would have grounds to claim for constructive dismissal.
Sorry FW, don't agree with you, I'm with EDC. I think your advice to the OP is flawed. I cannot forsee circumstances where OP could successfully make a claim of CD. The duty of care is a misnomer here, all that counts is adherence to the statutory provisions.At an ET, the claimant would simply have to show that the role was not redundant at the time of the consultation period and would have grounds to claim for constructive dismissal.
It is likely that the company does not know exactly which jobs would be required for an extended period. They are consulting with the workforce, seemingly at the earliest opportunity. It will become clear during the consultation which these roles are, no doubt.
These job-holders will be advised that their roles are not redundant, but there is a likelihood that they may become so at a future point in time. Remember that there is an overarching duty on employers to seek to avoid the need for, or reduce the numbers of redundant posts.
At a future date, the company may then enter into a further period of consultation in advance of the loss of the roles that have been retained.
fergywales said:
I disagree with you in this instance. If the company is making a supposition that, once the ongoing project is complete, the role is redundant, then the duty of care to the employee dictates that the employer must also be aware of the anticipated or actual end date, and that at this date, the role is entirely redundant within the company. In the same circumstance, they must convey this to the employee, as to withhold this would make the consultation period itself wrongful, as the role is not redundant.
At an ET, the claimant would simply have to show that the role was not redundant at the time of the consultation period and would have grounds to claim for constructive dismissal.
This is a bit different from what you wrote earlier as quoted below. You imply that if the role is redundant at the end of a project then the company should confirm this and give a final date within the consultation period. At an ET, the claimant would simply have to show that the role was not redundant at the time of the consultation period and would have grounds to claim for constructive dismissal.
The company could confirm roles as redundant at the end of the project but doesn't have to give a date at that time. Sure it would would be nice to know one but the practicality of business means you will probably communicate something like "we anticipate a leaving date at the end of Q2 in line with the project being completed".
fergywales said:
DanL, by what you have said, they are leaving themselves open to claims for constructive dismissal, by inferring that they disregard the rights of them employee to as stable a redundancy process as possible over the actual needs of the business. Whilst redundancy is an option to protect the business, the employer has a duty of care to the employee in involving them in the process.
Once the individual consultancy begins, you need to have the employer, once they have confirmed that your role will be redundant once the final project is complete, to set a firm date. If they resist, and you are fully aware that you will, at a not-yet-confirmed date, have no role with the employer, there is no risk to you in spelling out clearly that you feel that you have grounds for a claim for constructive dismissal as they have not upheld their duty of care to you. You cannot lose anything, as for the employer to act to your detriment would only strengthen your position of a potential claim.
Once the individual consultancy begins, you need to have the employer, once they have confirmed that your role will be redundant once the final project is complete, to set a firm date. If they resist, and you are fully aware that you will, at a not-yet-confirmed date, have no role with the employer, there is no risk to you in spelling out clearly that you feel that you have grounds for a claim for constructive dismissal as they have not upheld their duty of care to you. You cannot lose anything, as for the employer to act to your detriment would only strengthen your position of a potential claim.
Bonefish Blues said:
It is likely that the company does not know exactly which jobs would be required for an extended period. They are consulting with the workforce, seemingly at the earliest opportunity. It will become clear during the consultation which these roles are, no doubt.
These job-holders will be advised that their roles are not redundant, but there is a likelihood that they may become so at a future point in time. Remember that there is an overarching duty on employers to seek to avoid the need for, or reduce the numbers of redundant posts.
This would be fine, assuming that it's what happens... Our concern is that the individual consultancy period following the group consultancy may turn in to what is essentially an extended notice period, where individuals may be expected to continue working under the guise of being in "consultation", whilst being fully aware that in actual fact they're just being kept on to complete some work before being let go.These job-holders will be advised that their roles are not redundant, but there is a likelihood that they may become so at a future point in time. Remember that there is an overarching duty on employers to seek to avoid the need for, or reduce the numbers of redundant posts.
This is all supposition at the moment as we're still at the group consultation stage, and once again I'd like to thank everyone for their input. I'll endeavour to let you all know how it turns out - at the moment it sounds as though there may be something amiss, but that without knowing the absolute specifics it may also be perfectly permissible.
DanL said:
his would be fine, assuming that it's what happens... Our concern is that the individual consultancy period following the group consultancy may turn in to what is essentially an extended notice period, where individuals may be expected to continue working under the guise of being in "consultation", whilst being fully aware that in actual fact they're just being kept on to complete some work before being let go.
This is all supposition at the moment as we're still at the group consultation stage, and once again I'd like to thank everyone for their input. I'll endeavour to let you all know how it turns out - at the moment it sounds as though there may be something amiss, but that without knowing the absolute specifics it may also be perfectly permissible.
My bigger point was that you were being advised, in terms, that constructive dismissal would be easy to establish, and I was keen to add some balance to that advice as I thought it was incorrect unless the employer did something which flew in the face of the law. This is all supposition at the moment as we're still at the group consultation stage, and once again I'd like to thank everyone for their input. I'll endeavour to let you all know how it turns out - at the moment it sounds as though there may be something amiss, but that without knowing the absolute specifics it may also be perfectly permissible.
Good luck with the process.
Gassing Station | Jobs & Employment Matters | Top of Page | What's New | My Stuff