Redundancy procedure
If you are unfortunate enough to be faced with a possible redundancy situation then the starting point is your contract of employment, school redundancy policy, or employee handbook.
The purpose of having a redundancy policy and procedure is to ensure that it is clear to everyone how this difficult situation will be dealt with. A good redundancy policy will allow for the process to be dealt with in a fair, consistent and timely manner.
If your school does not have a redundancy policy and procedure then you, and your colleague NEU members, should approach the school management to open discussions on the issue. The preferred time to agree the terms of such documents is before redundancies are threatened.
Even if your school does not have a redundancy policy, there are important principles that it must follow:
- warning staff of the possibility of redundancy, consulting staff affected as well as recognised trade unions
- establishing objective criteria for selection and applying them fairly
- taking reasonable steps to find other work for displaced staff.
As a first step, schools need to identify the group of staff at risk. The ‘pool for selection’ depends on whether people are doing the same, or similar, work and whether jobs are interchangeable.
The redundancy pool in a preparatory school might be all teachers. In secondary schools the pool is often wider than first thought; for example, if a school cuts ICT from the curriculum, but the ICT teacher has a PGCE in maths and most maths teachers also teach ICT, then the pool might be teachers of both ICT and maths.
Warning
An employee facing the possibility of redundancy must be informed in writing that their employer is considering making their job redundant, sometimes known as an ‘at risk letter.’
The employee should be informed of their right to a meeting with the employer to discuss the matter. If the outcome of the meeting is unsatisfactory then the employee has the right of appeal.
Consultation
Your headteacher or line manager must consult you personally about a redundancy in order, among other things, to find out about any factors that might be of bearing of which he or she is unaware, or about other jobs which it might have been assumed you would not do. Simply informing you by letter is not good enough. Consultation must always be meaningful.
NEU believes that meaningful consultation should include:
- A clear rationale.
- An agreed process and timetable.
- Adequate time for staff to consider the proposals.
- Full disclosure of all relevant financial and other information, including school finances, to enable staff to ask pertinent questions, propose alternatives, and make informed decisions.
- Genuine consideration by the employer of proposed alternatives, at the end of the consultation period.
- A robust and independent staff representative body for this and future proposals on staff terms and conditions.
- NEU rep involvement.
In cases where there is the threat of 20 or more redundancies, special rules on consultation apply. Contact your NEU rep in these circumstances. Contact your regional office if there is no rep in your school.
An employer may also propose a temporary contractual arrangement to prevent staff leaving before the actual closure, or to cover a transitional phase, say in a merger. Enhanced conditions may include fewer hours of work while maintaining salary, bonuses, enhanced redundancy payments or other inducements.
Selection criteria
Selection criteria must be reasonable and clearly defined from the start.
Tribunals criticise imprecise criteria such as ‘flexibility’ or ‘balance of skills’ because there is no clear way of assessing them.
Selection for redundancy on the grounds of trade union membership is not allowed, and criteria should not discriminate on grounds of sex, race, disability, religious belief, sexual orientation, marital status, or age.
Some independent schools use attendance records as a criterion for selection, which NEU does not recommend. If there is an attendance issue, then it should be dealt with in the appropriate way. Use of such grounds can be potentially discriminatory, e.g. using attendance records where a woman has recently been away on maternity leave.
The number of years of relevant experience, or length of service, has often been used as a ‘tie-break’ criterion.
The latter may be referred to as ‘last-in first-out.’ However, under Equality Act 2010 this may be deemed to be discriminatory and should only be used subject to ensuring that it can be ‘objectively justified’ and is non-discriminatory.
Sadly, there are some instances of outright discrimination. Rebecca Raven, a teacher at an independent girls’ school, in Denbigh, North Wales, was made redundant after informing her employer she was pregnant.
NEU successfully took the employer to court winning compensation for this appalling treatment. The school was found guilty of unfair dismissal under Section 99 of the Employment Rights Act 1996 and discrimination under the Equality Act 2010.
Part-time employees must not be treated less favourably than full-time employees. It is not permissible for an employer to decide to make redundancies by letting the part-time employees go first.
Even with fair criteria, a redundancy can still be procedurally unfair if the school applies the criteria unreasonably or with the wrong group of teachers or does not consult.
A failure to follow its own redundancy policy and procedure will also leave a school open to challenge.
Fixed-term contracts
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 make it unlawful for an employer to treat fixed-term contract staff less favourably than comparable permanent colleagues.
This means, for example, that if there is a redundancy situation among support staff, a school cannot automatically select those who are on fixed-term contracts.
Furthermore, the non-renewal of a fixed-term contract may also qualify for a redundancy payment after two years’ service (unless that contract is for a specific temporary need, such as covering for someone who is on maternity leave).
Avoiding redundancy
The school must take reasonable steps to find alternative work for you. If it does not tell you about an appropriate vacancy, then your dismissal may be unfair.
Similarly, you are obliged to consider offers of suitable alternative employment, and you may lose your redundancy pay if you unreasonably refuse a suitable job.
Unfortunately, it is not unknown for independent schools to be recruiting staff on or around the time when making redundancies. This is not good practice and should be challenged.
On some occasions in smaller independent schools, the governors have kept staff informed of the precarious nature of the school’s finances and staff have decided to forgo salary increases to avoid redundancies.
NEU recommends that when a redundancy is being considered, governors and senior management should take a ‘whole school’ approach, looking beyond the post nominated for deletion to review the entire school, to ascertain whether rationalisation is possible.
A restructuring process might obviate the need for dismissals.
For example, let us say that the nursery attached to a school is not attracting enough pupils and someone will have to be made redundant. While the post would be deleted from the staff structure, it does not mean per se that the nursery schoolteacher’s employment at the school would cease.
Legal obligation on employer to take all practicable steps to avoid redundancy
An employer is legally obliged to take all practical measures to avoid making an employee redundant.
There are various ways in which this could be achieved. It may be that the person in the post has training, experience and expertise extending, for example, beyond the nursery age group and it may be that he or she could be employed elsewhere in the school.
It may be that teaching colleagues are planning to retire or to terminate their contract with the school on other grounds. A vacancy could arise which the employee facing redundancy could fill.
A common approach is to invite staff to volunteer for redundancy, as this could remove the need for a compulsory redundancy.
If there are no volunteers, then a set of criteria for a skills and experience audit can be generated, which all staff complete and is then scored to establish who has the most to offer to the school, e.g. who can teach subjects other than those they are currently required to offer.
For example, when two independent schools announced merger, staff were informed that there would be significant redundancies of over 70 jobs. Fortunately, for NEU members, they had already secured collective negotiation rights, via trade union recognition, so that NEU was negotiating for them right from the very start.
Working with the employer, NEU were able to secure the offer of voluntary redundancy at enhanced rates for all staff, reducing the need for compulsory job losses by 95%.
It was also agreed that staff under the threat of redundancy would be given priority treatment for vacancies elsewhere.
This positive outcome was a win-win: staff at risk of being made redundant weren’t forced to leave; staff who embraced the opportunity to try pastures new had a financial incentive; and the employer achieved the restructuring relatively painlessly with staff retaining good morale for the newly merged school.
In transferring to a new role, it is reasonable to expect a school to provide appropriate training if necessary, arranging a phased start and mentoring.
