Employment Law Issues for
Local Government Lawyers
www.emlawshare.co.uk
www.emlawshare.co.uk
Alternative Service Delivery
Models Managing the
Employment and Pension Risks
Kim Howell, Partner
Geldards LLP
www.emlawshare.co.uk
www.emlawshare.co.uk
Why Look Now?
• An unprecedented need to find savings – massive
pressure on public services
• The “NICE” decade is over- Meryvn King May
2008
• Unprecedented cuts to Local Government
budgets in England
– £6.68 billion between 2010 and 2015
– 45% reduction in government grants
– 500,000 jobs lost
www.emlawshare.co.uk
Why Look Now?
• Wide ranging responses to sustain service
delivery through transformation on all levels:– New Operating Models
– Service area redesign
– Process redesign - tighter debt and asset
management
• What, How, So What?
www.emlawshare.co.uk
Work in Progress
• Further budget implications in next spending
round
– £2.1 billion cut in Government funding in
2015/2016
• Employment matters?
– Pay bill lion’s share of budget
– At the heart of effective service redesign
www.emlawshare.co.uk
Work in Progress
• Challenging implications
– Less low hanging fruit
– More confusing media messages re economic health
of UK
– Increasing frustration with pay constraint
– Increasing risk of industrial unrest
– If services disappear, jobs gone for a generation or
longer
– Youth unemployment at all time low
– Public sector recruitment constraints adversely
affecting the future generation
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Obligations - avoiding the pitfalls!
• Setting up ASD vehicles fraught with governance
and legal issues
• Limited scope to change terms and conditions
(especially in TUPE context)- invalid change equals
contingent liability
• Redundancy (costs!) triggered where change of
location, material change in duties or where job
disappears
• Test for Suitability of alternative employment
very employee orientated
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Obligations - avoiding the pitfalls!
• Transfer to ASD vehicles often triggers bulk transfer
of pension benefits and triggers deficit crystallisation
• Case law complications
– Rules out pragmatic TUPE avoidance measures such
as Secondments- Celtec [2006] 4 All ER 27
– Aggregates multi site redundancies for collective
consultation purposes- Ethel Austin [2013] All ER (D)
17
• Governance in times of adversity- austerity
and bad news is the new normal!
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Why and How does choice of Alterative Delivery
Vehicle matter?
• Redundancy
– Has your policy been adapted to suit the current
challenge?
– Do you use voluntary severance appropriately?
– Do you have optimum flexibility to retain the best?
– Is your discretionary compensation policy effective,
affordable and non discriminatory?
– Do you distinguish between “suitability of
alternatives” when assessing eligibility for
statutory and discretionary compensation?
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Changing terms and conditions
– Has this opportunity been explored as a preferable
alternative to job cuts?
– “There is little point having the best terms and
conditions if you don’t have a job or no company left
to pay them!”- Unite and GMB
– Are the changes that TUPE 2012 delivered fully
understood and utilised?
– Is the limited but valuable scope to achieve changes
to terms and conditions in a TUPE scenario fully
understood and factored into the change
management programme?
www.emlawshare.co.uk
Employment Matters!
Obligation or Opportunity
Opportunity
• Have Equal Pay risks been identified, assessed
and managed?
• Are Governance arrangements fit for purpose
and sufficiently open and transparent?
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Practical Considerations
• Who will run the service?
• Who will work in the service?
• Does the preferred model facilitate/restrict
potential savings?
Political considerations
• Major implications for Democratic control
– Access to NNDR relief eg 80%/20%;some VAT
relief
– Eligibility for Charitable Status
– Procurement implications
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Legal Considerations
• Procurement
– Contract for services- Part A/B distinction short lived
– Teckal
• Benefits- passport the service
• Can rule out eligibility for reliefs because control
retained
• Likely to constitute control for equal pay purposes
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Legal Considerations
• State Aid
– Might be difficult to cut umbilical cord with confidence
– New 2014 State Aid concessions only available if
provide selected in open and transparent way
• £2m pa Operating Relief
• £15m Investment Relief
• Charitable Status
– Choice of model affects eligibility
– Choice of model and level of resource can
affect ability to manage the governance
obligations
www.emlawshare.co.uk
Why & How Does Choice of
ASD Matter
Financial Considerations
• Significant!
Understand the key drivers and “select for
success”
www.emlawshare.co.uk
Making the Most of a Restructure
Compensation policy
• Statutory obligation for regular review
• 104 weeks maximum but policy limit
• Termination for “redundancy” or “interests of
efficiency”
– Are both covered in policy?
– Are terms defined?
• Is there a fair and defensible balance between
cost / benefits for under / over 55s?
www.emlawshare.co.uk
Making the Most of a Restructure
Redundancy policy
• Guide not a straight jacket
– Ensure Pool appropriate
– Implications of “ melting pot” approach
• Select for success
– Less of the same
• Select out of role
• Looking back
• Williams v Compair Maxim [1982] IRLR 83
– New and Different Roles
• Appoint into role- new terms and conditions?
• Looking to the future
• Darlington Memorial NHS Hospital _EAT 1995
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Making the Most of a Restructure
Redundancy policy
• Make your SAE policy “suitable”
– Consider setting restrictions on access to
discretionary compensation
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Changing For The Better
Securing effective change
• Why?
– Staff costs lion’s share of budget so key target for
savings
– Redundancy avoidance measure
• How?
– Collective Agreement
– Dismissal and Re-engagement
• Nicholls v Coventry CC [2009] All ER (D) 15 (Mar)
• What is your SOSR?
www.emlawshare.co.uk
Changing For The Better
Securing effective change
• Ask the Audience!
– Individual Agreement
– Pragmatic Responses
• The Motor Industry 2008
• “There is little point having the best terms and
conditions in the world if you don’t have a job or no
company left to pay them!” Unite and GMB 2008
• Local Authorities
• When?
– When necessary
• TUPE complications!
www.emlawshare.co.uk
Service Redesign in a TUPE
Scenario
Preliminary Considerations?
• Does TUPE apply?
• Is there a transfer of an economic entity?
– Is there an interruption to service delivery?
– Is there an organised grouping of employees
wholly assigned to the service?
• Does the current contract provide sufficient
protections on service handover!!!!
www.emlawshare.co.uk
Service Redesign in a TUPE
Scenario
• Risks if uncertainty over who will transfer
– Will there be a workforce to run the service on day
1?
– Will the transferee inherit too many staff?
– What is the impact of potential redundancy costs
on sustainability of new service?
• State aid implications if financial support an after
thought
• Consider due diligence of own arrangement and
consider requiring agreed protocol that exceeds
TUPE requirement
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
Since January 2014, greater scope to change
• Previously - if dismissals or changes to T’s and C’s
– “By reason of” transfer- always unlawful and void
– For a reason “connected with” transfer-unlawful only
if no ETO reason
• Little clarity as to whether “by reason of” or
“connected with” transfer
• Uncertainty increased risk and acted as inhibitor to
change
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
Since January 2014, greater scope to change
• Now ETO reason is the key consideration
– Provided the sole or principal reason for dismissal
or changes to T’s and C’s is an “economic ,
technical or organisational reason, entailing
changes in the workforce (numbers, functions,
location) dismissal not automatically unfair
• Scope to reach agreement
– Collectively after a year if no less favourable
– Individually provided ETO reason applies
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
• Transfer related restructures potentially fair
• Transfer related changes to T’s & C’s lawful by
agreement
• Where not agreed
– Consider dismissal and re-engagement on new
terms
– But ensure ETO reason “entailing changes in work
force” valid at time
www.emlawshare.co.uk
TUPE – Scope to Restructure
and Change T’s and C’s
• Beware Manchester University scenario
– Phased programme by agreement with Trade
Unions, driven by cost
– Restructure - voluntary severance – 200 job losses
– Subsequent need to change T’s and C’s by D and R
– Dismissals unfair as no ETO reasons at time
– Numbers/ functions/locations of workforce did not
change
• Plan a holistic approach to ensure ETO reason
prevails
www.emlawshare.co.uk
Maximising Employment
Flexibility (within the law)
Secondment
• Loan of employee by employer to another
organisation
• Designed to be short term
• Traditional TUPE avoidance route to overcome
– Uncompetitive salaries
– Risk of losing accrued service benefits in the event
of future redundancy exit
– Pension transfer issues
www.emlawshare.co.uk
Maximising Employment
Flexibility (within the law)
Secondment
• Where employee is assigned to service that
transfers, contract of employment transfers by
operation of law unless
– Formal objection under TUPE
– Celtec v Astley and Others [2006] 4 All ER 27
• Consider formal Retention of Employment
arrangements where business case supports this
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Cross employer comparison where employers are
“associated”
• “Associated” – where one employer is a company
of which the other, directly or indirectly, has
control
• Are LLPs indistinguishable from companies?
• Was the Council a “Single Source”, responsible
for difference in pay under Art 157 TFEU?
– Responsible for the inequality and which could
restore equal treatment
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Council had 4 out of 5 seats on Board of LLPs so
had “control”
• LLPs indistinguishable from companies for
purpose of s16 EPA
• Single Source– Not necessary to determine this but
– Implied that control that met Teckal test, was
sufficient to meet single source test
www.emlawshare.co.uk
Equal Pay Implications
Glasgow City Council CPG and Cordia v Unison
and Fox Cross Claimants [2014] CSIH 27
• Ensure any pay difference can be explained and
evidenced by reference to a Material factor
defence
• Where disparate impact in gender terms, also
necessary to objectively justify pay differences
www.emlawshare.co.uk
Pensions
• ‘A Fair Deal for Pensions’
Service providers must allow employees to
remain in their existing public service pension
scheme
• Best Value Authorities Staff Transfers (Pensions)
Direction 2007
Local Government Pension Scheme
• May qualify either as:
– Scheme employer; or
– Non-scheme employer as admission body
• Implications for New Joiners
www.emlawshare.co.uk
Governance in Times of Austerity
• A New Era
• More risk
• Different risks- as boundaries pushed and
sometimes crossed
• New deal for Officer/ Member accountability
www.emlawshare.co.uk
Governance in Times of Austerity
Scope for conflicts of interests
• Obligation for Council to deliver services and
balance budget
– As provider or commissioner
– Having regard to all stakeholders
– Beware over reliance on views of only some e.g.
trade unions
– Consider new ways to discharge consultation
obligations to widen stakeholder engagement
www.emlawshare.co.uk
Governance in Times of Austerity
Scope for conflicts of interests
• Recent emergence in misconduct in public office
prosecutions linked to officer conflicts
• Ensure Chief Officer Disciplinary and Grievance
Procedures and linked governance
arrangements in place and appropriate
www.emlawshare.co.uk
In Summary
Employment Matters!
• Key factor in delivering sustainable service
transformation
• Be part of preliminary debate about service
transformation options
• Shape the strategy
• Manage to facilitate not inhibit change
• Deliver the solutions!
www.emlawshare.co.uk
Social media – the
employment issues
Andrew Tomlinson
Solicitor, Weightmans LLP
Tel: 0116 242 8902
andrew.tomlinson@weightmans.com
www.emlawshare.co.uk
Faye Reynolds
Solicitor, Weightmans LLP
Tel: 0121 200 5754
faye.reynolds@weightmans.com
Introduction
• The importance of a Social Media Policy
• The “defences” raised by employees in context
www.emlawshare.co.uk
The Social Media Policy – why have
it?
a) Sets down rules on what is acceptable and
what is not
b) Gives Managers confidence when dealing
with the issue
c) Should ensure consistency of approach
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The Social Media Policy – what should it
contain?
•
Not allowed to make derogatory/negative
comments about:
-
Colleagues
The employer thereby damaging its reputation
End users
(even if made outside of work, but which affect the
employees’ ability to do his/her job)
www.emlawshare.co.uk
The Social Media Policy – what should it
contain? (continued)
•
That such comments will lead to disciplinary
action and may result in dismissal
•
Restrictions on internet usage
•
Monitoring of internet usage (data
protection/privacy issues)
www.emlawshare.co.uk
The Social Media Policy – how to
implement
•
Use of work place representatives or Trade Union
representatives
•
Be aware of impact on other policies such as:
a)
b)
c)
Disciplinary policy – gross misconduct
Equal opportunities policy
Bullying and harassment policy
www.emlawshare.co.uk
The employee “defences” in context
•
“I did not know we had a Social Media Policy so
you can’t get me into trouble”
Crisp v Apple Retail (UK) Ltd
(ET Case No 1500258/2011)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“My Facebook settings are private so only my
“friends” can see what I say so no harm done”
Preece v JD Weatherspoons
(ET Case No 2104806/2012)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“My Facebook settings are private so only my
“friends” can see what I say so no harm done”
Mrs J Reid v Royal Mail Group
(ET Case No 2803020/2011)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“My Human Rights mean I can say what I like on
Social Media sites”
Daniel Joseph Teggart v TeleTech UK Limited
(Northern Ireland ET Ref 704/2011)
www.emlawshare.co.uk
The employee “defences” in context
(continued)
•
“The comments did not identify my workplace so
how can I have brought the organisation into
disrepute?”
Whitham v Club 24 Ltd t/a Ventura
(ET Case No 1810462/2010)
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The employee “defences” in context
(continued)
•
I immediately removed my comments when I
found out it was wrong; I’m sorry”
Stephens v Halfords Plc
(ET Case No 1700796/2010)
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The employee “defences” in context
(continued)
•
“That is clearly my personal Twitter account, so
my employer does not need to get involved.”
Game v Laws
(UKEAT/0188/14)
www.emlawshare.co.uk
Conclusions
• Have a robust and flexible Social Media Policy
• Take each “defence” on its merits
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Restructuring
Kim Howell, Partner
Geldards LLP
www.emlawshare.co.uk
www.emlawshare.co.uk
Setting the Scene
Taking Tough Decisions
• Different mind set
– Extent of challenge
– Extent of options
– Timescale for delivery of outcomes
• All change!
www.emlawshare.co.uk
Understanding the Options
• Traditional responses
– Voluntary redundancies
– Collectively agreed changes
• Sustainable solutions
− Restructured services
− Affordable terms and conditions
− Sharing with thy neighbour!
www.emlawshare.co.uk
Understanding the Options
Identifying Solutions
• Relevant considerations
–
–
–
–
–
–
Business case/ reason
Powers and governance
Stakeholder consultation
Contingency planning
Assessing true cost of change versus status quo!
Identifying potential obstacles - legal pitfalls!
www.emlawshare.co.uk
The Legal Pitfalls
Identifying legal pitfalls
• Obligation or opportunity
– Redundancy vs Restructuring
• What you do; and
• How you do it
www.emlawshare.co.uk
The Legal Pitfalls
• Managing Redundancy Issues
• Legal principles
• Practical application
www.emlawshare.co.uk
Redundancy
•
•
•
•
•
•
•
Access to employment protection insurance
Statutory redundancy pay
Enhanced redundancy compensation
Access to unreduced pension
Collective consultation obligations-S188
suitable alternative employment obligations
A fair reason for dismissal
www.emlawshare.co.uk
Redundancy
“Redundancy” - S139 ERA 1996
• The employer has ceased or intends to cease
– To carry on the business for the purpose for which
the employee was employed
– Or to do so at the place so employed
• Requirements of business :– For employees to do work of particular kind;
– Or to do so at place so employed
– Have ceased or diminished, or are expected to do
so, either permanently or temporarily and for
whatever reason
www.emlawshare.co.uk
Redundancy
• What does this mean?
– Dismissal must be wholly or mainly attributable to
• Business closure by the employer
• Workplace closure by the employer
• Need for number of employees to carry out particular
work has diminished
• Need for work of a particular kind has diminished
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Redundancy
Redundancy Pay Costs
• Mandatory
– Statutory - Capped at £13,920
– Over 55’s:• Immediate access to unreduced pension (mandatory)
under LGPS
• Plus any discretionary pay
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Redundancy
Redundancy Pay Costs
• Discretionary (under Local Government
Regulations)
– Up to 104 weeks permitted but capped
– Under 55’s - X weeks full pay
– Over 55’s - variable re pensions strain gap with Under
55 limit
• Significant cost
• Relevant factor in cost reduction strategy!
www.emlawshare.co.uk
Expiry of Fixed Term Contracts
• 2002 Regs - greater protection for Fixed Term and
Limited Term contracts
– Included “task specific” contracts as FTC
– Removed waiver of right to redundancy pay
– Non renewal of FTC can create redundancy where
reason for non renewal meets definition in S 139 ERA
• Consider continuity of service between contracts and
between employers for LGPS!
• Consider unfair dismissal obligations and
SOSR
• Plan ahead re fair reason for non-renewal
www.emlawshare.co.uk
Redundancy
• Fair reason for dismissal
• Not selected for automatically unfair reasons;
• Is not unfair in all the circumstances- S98(4)
– Unlikely to be unfair if follow agreed / customary
procedure
– Duty to consult under S 188 TULRCA, a factor
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Collective Consultation
S188 TULRCA 1992
• Broad definition
– Applies to all dismissals not related to the
individual concerned
– Includes classic redundancy scenario
– Covers changing terms and conditions if dismissal
contemplated implementation mode
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Collective Consultation
S188 TULRCA 1992
• Applies when “proposing to dismiss”, “within a 90
day period”
– 20 or more affected - at least 30 day consultation
period
– 100 or more affected - at least 45 days
consultation period
– Before first dismissal takes effect
• NB “at a single establishment”
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“Establishment”
What is an establishment in a Local Authority
setting?
• No statutory definition
• Courts adopt a “ purposive” approach
– Will look at autonomy and resources
– Need not have legal, economic, technical autonomy
• Mills and Allen v Bullwich EAT 154/99 - yes
• MSF v Refuge Assurance EAT/1371/99 [2002]
IRLR 324 - no
www.emlawshare.co.uk
“Establishment”
What is an establishment in a Local Authority
setting?
• Autonomous unit with budget, resources and
decision making power- e.g. School
• Directorate responsible for multi-site offices?
• Corporate approach could be determinative
www.emlawshare.co.uk
The Woolworths Case
• Woolworths went into administration in November
2008
• Large scale redundancies
• Breach of information and consultation obligations
• Complaints to ET seeking protective awards
• Each store “separate establishment”
• Duty to inform and consult not engaged in respect
of stores with fewer than 20 employees
www.emlawshare.co.uk
The Woolworths Case
• Section 188(1) TULCRA 1992
• Employers are obliged to inform and consult
collectively where they propose to dismiss as
redundant 20 or more employees at one
establishment within a period of 90 days or less
• TULCRA incompatible with directive
• Not possible to interpret TULCRA purposively
– MSF v Refuge Assurance plc and others [2002]
IRLR 324
– Renfrewshire Council v Educational Institute of
Scotland [2013] IRLR 76
www.emlawshare.co.uk
The Woolworths Case
• EAT accepted that 188 TULCRA is more
restrictive than ECRD
• The words “at one establishment” should be
deleted from section 188 altogether
• If an employer is proposed to dismiss 20 or more
employees in any 90 period then the collective
consultation duty arises regardless of the location
of the proposed dismissals
• COA referred to the ECJ
www.emlawshare.co.uk
What a difference a year
makes!
• City of Edinburgh v Wilkinson and others
– Equal pay case
– Court of Session determined that Claimants were
not employed at the same establishment as their
comparators
– Overturned Scottish EAT decision
www.emlawshare.co.uk
What a difference a year
makes!
• Renfrewshire Council v Educational Institute of
Scotland (2012)
• Scottish EAT overturned decision that for
collective consultation purposes “establishment”
was Education and Leisure Services of Council
• Not individual schools
• EAT stated that this “flew in the face of reason
and was perverse”
www.emlawshare.co.uk
Renfrewshire Council
• The judge at first instance did not consider that a
school was a distinct entity
• Concentrated on contractual rather than factual
decision
• Rather than focussing on where the teachers did
their work, judge placed emphasis on place from
where employment was controlled.
www.emlawshare.co.uk
Renfrewshire Council
• EAT observations on meaning of “establishment”
• Decision is factually dependent
• Establishment is likely to be less than whole
undertaking
• Establishment connoted physical presence
• There must be sufficient links with other
establishments to recognise it as part of a larger
whole
www.emlawshare.co.uk
Collective Consultation
Collective consultation information
• Reasons
• Numbers and descriptions
• Total number of employees
• Proposed method of selection
• Proposed method of carrying out dismissals
• Proposed method of calculating any redundancy
www.emlawshare.co.uk
Collective Consultation
S188
• Requires meaningful consultation about:–
–
–
–
Avoiding dismissals
Reducing the numbers to be dismissed
Mitigating the consequences of dismissals
Must be undertaken with a “view to reaching
agreement”
• Does this widen the obligation to explore changes
to terms and conditions that could achieve similar
cost reductions?
www.emlawshare.co.uk
Collective Consultation
Reasons
• Must inform of genuine reason for dismissal, not
convenient sham
– Cost driven when claimed H&S reason for closure
was breach of duty!
• If reason outside S139 definition, note need to
establish SOSR
– Relevant to unfair dismissal
– Could avoid expectation of LGPS pension access
www.emlawshare.co.uk
Selection Issues
• Pool
• Criteria
– Selecting less of the same
– Appointing to something different
– Bumping!
• Validating the process
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Selection Issues
The Pool
• Composition of pool vulnerable to challenge
– Does the pool include all employees doing similar
work/interchangeable?
– Does pool include employees doing unconnected
work e.g. where different drivers for termination?
– Are there factors that indicate employee was
selected for pool for non relevant reasons?
– Should the pool be limited to a location?
– Should pool comprise all in department when
restructuring?
– Should be consistent with approach with
establishment
www.emlawshare.co.uk
Selection Issues
Redundancy Selection
• Williams v Compair Maxam 1982 [IRLR] 83
– “Criteria should not be based on opinion of
selector”
– “Should be objectively assessed”
– Matrix approach
– Looking back?
www.emlawshare.co.uk
Selection Criteria
• Typical selection criteria
– Training
– Knowledge/experience/qualifications
– Key skills and competencies (must define precise
nature)
– Attendance (consider period carefully and reasons
for non-attendance)
– Disciplinary records (consider period carefully)
– Performance (must define precise nature)
– Length of Service (consider carefully – age
discrimination)
www.emlawshare.co.uk
Restructuring
• Reshaping services
–
–
–
–
New roles
New responsibilities
New terms and conditions
Selection implication
www.emlawshare.co.uk
Restructuring Selection
• Darlington Memorial NHS Hospital v EdwardsEAT/678/ 95
– “ET direction that choice of staff for new posts must
be based on similar principles to selection for
redundancy was wholly mistaken”
– “Where new jobs/different job description,
employer most certainly not under duty to carry out
the type of exercise that would be required when
deciding who to select for redundancy”
• Looking ahead?
www.emlawshare.co.uk
Collective Consultation
When Must Consultation Begin?
• S188 obligation does not arise until a proposal to
dismiss is formulated
• Not triggered when consulting about
implementing changes by agreement
• Once dismissal proposal formulated must begin
– “In good time”
– Before the dismissals take effect
• Unison v Leicester County Council 2006
• Once there is a “proposal”, consultation must
begin speedily thereafter!
www.emlawshare.co.uk
Alternative Employment
• General
– Legal duty for employer to consider “suitable
alternative employment” (“SAE”)
– Extend possibility for SAE to all employees within
pool of selection
– Consideration of SAE should be made during
consultation process and following formal notice of
redundancy dismissals
www.emlawshare.co.uk
Alternative Employment
• Trial periods
– If terms of employment differ – employee entitled to
at least 4 weeks without prejudice to redundancy
rights
• Refusal of alternative employment
– If employee unreasonably refuses – loses right to
redundancy payment
– Reasonableness depends on terms and conditions
of alternative employment as well as employee’s
personal reasons
www.emlawshare.co.uk
Notice
When can notice be served?
• ECJ Junk case – not before end of consultation
process???
• Cautious approach- only when consultation period
expired
• Robust approach- to coincide with end of
consultation period
• Sensible approach- not before meaningful
consultation has either achieved agreement or
has been exhausted
• Likely to vary with circumstances
www.emlawshare.co.uk
Unfair Dismissal Implications
• Costs
– Compensatory award -
– Basic award – Failure to inform and consult -
• Hassle factor
• Reputational risk
• Legal costs
www.emlawshare.co.uk
£76,574
(Or 12 months
pay if lower)
£13,920
Up to 90 days
pay
?
?
?
Cost Implications
Cost implications of alternative approaches
• Traditional approach
– Might exit the wrong people
– Might miss opportunity to redesign services
• Restructure approach
– Opportunity to shape wider service, affecting whole
groups
– Greater flexibility to select for the future
– Redesign terms and conditions for sustainability
and efficiency
– Might avoid redundancy pay by SAE
• Acceptance or unreasonable refusal !
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Practical Challenges
• Select the cost saving measure carefully
• Make informed decisions
• Plan ahead
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What/when/how/who?
The AA Route Map
Identifying legal and practical pitfalls
What do we have vs what do we need
Incentivise consensus
Contingency plan
• Ensure solution still “in date”
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Any Questions?
T: +44 (0) 29 2039 1473
M: +44 (0) 7918 673746
E: kim.howell@geldards.com
www.emlawshare.co.uk