Your Employment Law questions answered
26th October 2011
Q. The recent economic trading conditions have led to a reduction in demand for our services. As a business owner I no longer have enough work for all my staff. What do I need to do to lay them off?
A. Firstly, do you want to lay them off (keep them on your books but with no work) or do you want to make them redundant (dismiss them)? Lay off and short-time working are both used as temporary measures to respond to reductions in demand, whereas redundancy is permanent. Many SME owners use ‘lay them off’ when they mean ‘make them redundant’, so I’ve assumed you mean the latter. The process is different depending on the number to be made redundant and whether you recognise a trade union or not, so I’ve assumed that the number is less than 20 and that there isn’t a trade union involved.
A redundancy is still a dismissal and, like any other form of dismissal, it can be fair or unfair. Generally, employers lose unfair redundancy dismissal cases at employment tribunals if there has not been adequate consultation with their employees or if there has been a poor redundancy selection process.
Consultation begins with group meetings with all those who could be affected by the redundancies and concludes with individual meetings. If the redundancies will be company-wide, this means the group meetings will be with the whole workforce. The first group consultation meeting is used to break the news about the current situation and to propose redundancies as a possible solution. The ‘consultation’ part of the meeting is to ask employees to think about any ideas that might help to avoid redundancies and to let you know before the next meeting.
At the second group meeting you respond to any alternative suggestions to redundancy that have been put forward. If redundancies are still the only viable solution and, assuming you will need to select employees to be made redundant (rather than closing the whole or part of the business), you should outline your proposed selection criteria and ask for alternative suggestions. You also need to explain the redundancy terms and to ask for any volunteers for redundancy.
The final group meeting is to respond to any suggested alternative redundancy selection criteria, to report back on the situation regarding volunteers for redundancy and to outline the plans for redundancy selection and the rest of the consultation process. Although employees can volunteer for redundancy this doesn’t place you under any obligation to accept their offer to be made redundant. You should consider the impact on your business of losing each volunteer before reaching a decision on whether or not to accept any offers.
Individual consultation meetings are only held with those who are in the ‘pool’ of those at risk of redundancy. The first individual meetings involve explaining the scoring system that was used in the selection process, showing them their own score so that any discrepancies in the scoring process can be identified and finally outlining the next stage of the process.
Most redundancy selection criteria are scored on a ‘matrix’ – employees’ names across the top and criteria down the side, scoring each employee out of 5 or 10 against each criterion. Employers can lose employment tribunal cases on this point if inappropriate scorers are used (people who don’t know enough about the employees to score them), if there is bias in the scoring, or if the criteria cannot be measured objectively.
The second and final individual meetings are with those who have been selected for redundancy. At these meetings you confirm that the employee has been selected for redundancy and when it will take effect, explain the redundancy payment and any other payments relating to the termination of their employment and explain that they have the right to appeal against the redundancy decision.
This all looks very clinical, and to a large extent it is, but unfortunately a failure to follow a logical redundancy ‘process’ increases your exposure to employment tribunal claims.
Q. I manage a care home and have a pregnant employee whose boyfriend also works for the home, but is not the biological father of the child. He has requested to take paternity leave off once the baby arrives, can I refuse this request?
A. The person eligible for statutory paternity leave and pay is the person who has or expects to have responsibility for the upbringing of the child and is either the biological father of the child or is married to, or is the partner of, the child’s mother.
If, therefore, the boyfriend is the partner of the child’s mother and he expects to have responsibility for the upbringing of the child, then he is entitled to statutory paternity leave and pay.
Q. I have my own business which is steadily growing. I want to make sure I am following the correct procedures when employees are off sick, what should I be doing?
A. We would advise having an ‘acceptable’ level of absence in mind and then starting a consistent absence management process with everyone who exceeds this level. However, within this process you need to be able to respond flexibly to a particular individual’s circumstances.
For the majority of employees this process directly influences their decision “to attend or not to attend”. In brief,
* Make it known that you actively record and monitor absences.
* Actively and consistently carry out ‘return to work’ interviews after every absence.
* Follow a fair procedure and, where appropriate, take disciplinary action against those employees who fall short of the attendance standards.
* Ensure that employees are aware of the impact of their absence, both on customers or clients, and on their work colleagues.
* Treat employees in the same way as you would expect to be treated.
You also need to take into account any potential ‘discrimination’ issues connected with the absences. A word of warning – the statutory definition of ‘disability’ is very broad, and can encompass employees who are off regularly with depression, a bad back etc., and whose illness might not fit your idea of what makes an employee ‘disabled’.
EMPLOYERS: To have your legal questions answered call 0845 844 1111.
Compliance is an area of the business that cannot be ignored and Citation helps clients to achieve Employment Law compliance.
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Strikes could leave Employers short staffed
3rd October 2011
Following the nationwide strike by civil servants, teachers and leturers earlier this year, discussions are underway with Unions about another series of strikes later in the year.
The Unions have recently been threatening further strike action later on in the year over the changes to public sector pensions, but nothing has been confirmed.
What is your position as an employer should a staff member be unable to source alternative childcare during a strike?
We advise employers to encourage employees to think ahead and to be proactive about looking at alternative childcare arrangements including asking relatives, friends or nurseries to care for children if schools close.
You could also consider allowing employees to take their holiday entitlement, look at the possibility of the employee working from home or agreeing time off that can be worked back at a later date.
Ultimately, if none of the above applies, then employees have a legal right to take a reasonable amount of unpaid time off to cope with an emergency involving a dependant.
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