Redundancy arises when the requirements for employees to carry out work of a particular kind, and/or for employees to carry out work of a particular kind in the place where they are employed, have ceased or diminished, or are expected to do so.
For example, redundancies may arise where:
- a subject is no longer being taught as part of the curriculum
- a school or college merger will result in one or more members of staff losing their position
- a full-time position is reduced to a part-time position and the post holder is not willing to accept the reduction in hours
- the school or college is in financial difficulties leading to a proposed reduction in staff numbers
- the school or college has experienced falling rolls and, as a result, the budget has been cut (local authority schools are funded on a per pupil basis).
Employers may also apply a practice known as ‘bumping’, where an employee whose role is redundant is moved into another person’s job and that person is dismissed instead.
Dismissal on grounds of redundancy is a potentially fair reason for dismissal, so it will be for you to prove that your dismissal is unfair, not for your employer to prove that it is fair.
The legal process
The law expects employers to observe five key principles:
- to warn the workforce of the prospect of redundancies as early as practicable.
- to consult recognised trade unions in good time where 20 or more staff are affected.
- to establish objective criteria for any selection of staff for redundancy.
- to apply the criteria objectively, so that the selections made are broadly fair.
- to take reasonable steps to find alternative employment within the institution for displaced staff.
It is important to establish that dismissal is on grounds of redundancy because otherwise you are not legally entitled to redundancy pay. It is important for those whose employers have become insolvent to establish that they are redundant so that redundancy pay may be recovered from the Insolvency Service.
Where 20 or more staff are to be made redundant, the employer is legally obliged to consult the representatives of recognised unions. The process begins with the employer issuing a written ‘section 188 notice’ to the representatives of recognised unions.
The consultations must begin ‘in good time’ to enable meaningful discussions to take place and there are legal minimums for the period of consultation. These periods of consultation must take place before the selection of individuals for redundancy and not after they have been given notice.
The consultations must include ways of:
- avoiding the dismissals
- reducing the numbers of employees to be dismissed
- mitigating the consequences of dismissal.
In practice, the consultations will normally focus on three areas:
- whether there is a real necessity for redundancies and strategies to avoid them
- proposals to ease the burden on affected staff (such as voluntary severance schemes or enhanced redundancy pay)
- the proposed method of selection of staff for redundancy.
Issues for consultation
Management should provide a clear business case for the proposed changes, with stated figures and costs in plain English so the figures and statistics are clear to the reps.
At an early stage, consideration should be given to understanding the college’s rationale for the redundancies, the impact on the college generally (since staff tend to teach on a number of courses), and how this will affect the college’s capacity to develop.
It is crucial that ‘efficiency’ cuts that are financially orientated should be distinguished from ‘value for money’ considerations. Negotiations need to ensure that the college has a strategic vision that is sustainable and not a quick fix. A focus on the concept of value for money will help do that.
Reps should seek out and utilise information from those directly involved to counter management’s proposals where appropriate, while keeping their challenges and counter-proposals realistic.
Alternatives to redundancy
There is a wide range of possible measures to reduce or avoid the need for redundancies. Where appropriate, representatives should press for these to be considered.
The ultimate goal is that, after adoption of appropriate alternative measures, voluntary redundancies and suitable redeployments, etc, no compulsory redundancies are necessary.
Selection for redundancy
The law does not oblige employers to adopt any particular criteria, provided the criteria used are broadly reasonable and applied objectively.
It may be helpful for reps to call for a skills audit to be conducted to ensure that any decisions based on these criteria are founded on an accurate picture of the individual’s skills, experience, qualifications and employment record.
Criteria should not discriminate on grounds of sex, race, disability, religious belief, sexual orientation or age. Selection for redundancy on the grounds of trade union membership is not permitted.
The NEU opposes the use of attendance records as a criterion. The use of such grounds can potentially be discriminatory, e.g. for female staff who have been on maternity leave or for individuals with a disability.
‘Last-in-first-out’ (LIFO) has long been a criterion for selection and can be favoured by both management and unions as being easy to operate and apparently objective. Its use has been challenged under age discrimination regulations as being discriminatory against younger staff.
Part-time employees must not be treated less favourably than comparable full-time employees.
To ensure staff facing redundancy have the best opportunity to obtain alternative employment, reps should press management to adopt a ring-fencing policy. This provides that ‘at-risk’ individuals are given priority of consideration for vacancies for which they have the minimum requirements. More details on the link.
To ensure that as many staff are given the option of taking voluntary redundancy (VR) as possible, the idea of ‘bumping’ can be introduced. This refers to allowing staff to take voluntary redundancy from an unaffected area, creating a vacancy that those threatened with redundancy can apply for.
Negotiators should not be shy of suggesting creative ways of enhancing the package, particularly as for some small cost and with goodwill, the college may be able to meet the level of the staff reductions it needs.
Such enhanced offers will give much-needed support to staff taking redundancy and demonstrate that an employer is being supportive.
There should be an audit of the current staffing model and an audit of staff skills in affected areas.
Reps should request and refer to the Health and Safety Executive’s stress management standards to avoid increasing stress in the workforce where possible. Reps should have adequate facility time and teaching cover during the consultation period.