Archive

If you’re considering your overheads and thinking of asking contractors to deliver services you currently provide in-house, watch of for the ‘TUPE trap’. 

TUPE’s over-riding principle – ’employees follow the work’. This means that wherever the work goes, employees are often entitled to follow.

If you forget or ignore this principle – when you make redundant employees currently delivering an in-house service, such dismissals may be automatically unfair.

Potential liabilities – you might also find yourselves liable for claims for failure to provide employee liability information to the incoming contractor (a minimum of £500 for each employee that information has not been provided for) and 13 weeks’ pay per employee who had the right to be consulted about the right to transfer.

It’s not always easy to identify where there is a TUPE transfer, so we’ve uploaded a checklist to the Intelligent Employment platform (under ‘TUPE guidance’) to help you further. Or get in touch if you’d like to discuss a potential TUPE transfer with our expert employment lawyers.

This update is accurate on the date it was sent (21 October 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

If you’ve followed a fair and robust redundancy process and found that there is no alternative but to end the employment of the ‘at risk’ employees, here’s what you’ll need to consider:

Notice – if you have the contractual right you could place the individual on garden leave or pay them in lieu of notice. Alternatively, you could ask them to serve out their notice. Serving out notice provides the obvious benefits of furlough support (for now, if they are not working), an opportunity for handover and staggered payments aiding cashflow.

Redundancy pay – this is based on the individual’s length of service on the last day of their employment (the government calculator is a useful tool). There is no prescribed time to make the redundancy payment, but it must be made within a reasonable period.

Holiday – employees are entitled to accrued untaken holiday pay when they leave. This can be paid as a lump sum or with appropriate notice you can require them to use their remaining holiday during notice.

Outplacement – a great way of reducing the possibility of litigation and a positive end to employment. The individual secures CV writing skills, support with job search and interview skills training. Get in touch if you’d like to find out more.

We’ve reached the end of our ‘restructures, redundancies and re-shaping roles’ update series. If you’d like to revisit anything we’ve covered, you can find the archive here, or get in touch if there is anything you’d like to discuss in more detail with our expert employment lawyers.

This update is accurate on the date it was sent (07 October 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Following a fair process, once you’ve confirmed there’s no other option but to make the individual’s role redundant, the next step is to consider suitable alternative roles that you have available.

Here’s what you need to know:

Compare and contrast – the suitability of a role is determined by comparing the individual’s current role with the new role available. Salary, place of work, skills required and aptitude for the role are all factors you can use to determine whether the available role is a suitable alternative.

Be specific – it’s not good enough just to give the employee a list of available roles – you need to search out the roles that could be suitable alternatives.

Bigger picture – if you’re part of a group of companies, your search for suitable alternatives should be group-wide.

First in line – if the individual at risk is on maternity leave, they must be offered the suitable alternative role ahead of any other individual who might also be suitable for the role.

If you need support in determining whether you have suitable alternatives available or how to compare two roles, get in touch for our expert advice. In update #10 we’ll be looking at ending the redundancy consultation process.

This update is accurate on the date it was sent (17 September 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Once you have your pool of ‘at risk’ employees, you’ll need to decide your criteria for selecting employees from that pool.

Fairness, objectivity, and consistency are the backbone of a lawful selection process. Here are our thoughts:

Objective, measurable selection criteria – selection criteria that isn’t objective or measurable is likely to result in an unfair dismissal. If you’d like to know how to access our suggested selection criteria, click here. Ensure that you consult on the selection criteria that you’d like to use so that each individual has the opportunity to have their say before scoring starts.

Avoid discriminatory selection criteria – criteria based on length of service, absence or flexibility could be considered discriminatory on the grounds of age, disability or sex respectively. Ensure that you make adjustments so that the criteria do not prejudice those with protected characteristics, or avoid using them entirely.

Fair scoring – ensure that your selection criteria feature on a scoring matrix with clear parameters as to the score that will be awarded. Ideally ensure that any score is justified with evidence as to why it has been awarded.

Verification of manager scores – ensure a manager with the ability to find evidence or measure the individual against the selection criteria carries out the initial scoring. Their scores should be verified by another manager or their manager with knowledge of the employee to ensure that the scoring matrix has been applied fairly and consistently.

Consult about scores – individuals have the right to hear the scores that they have been given, the evidence as to why the score was awarded and the break point they had to achieve to avoid redundancy. They have the right to challenge the scores possibly resulting in re-scoring if there is merit to their objections.

If you’re concerned that you don’t have good enough people processes currently in place to be able to identify objective, measurable selection criteria, get in touch for advice on how to develop those processes. In update #9 of this series, we’re looking at suitable alternative employment. 

This update is accurate on the date it was sent (08 September 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

When you have more employees than the roles available, you may need to ‘pool’ those employees carrying out the at risk roles to fairly decide who remains at risk.

It’s usually the case that you’ll want to restrict the pool as much as possible. Here are our thoughts:

Be clear on the roles at risk – identifying which roles need to be pooled isn’t always as easy as it sounds. Do you have different job titles or job descriptions for the same roles, have job titles and job descriptions not been amended to keep up with the roles individuals are actually doing? This all needs to be considered.

Identify the individuals carrying out the pooled roles – do a number of individuals interchange between different roles as they have a wide skill set? In which case would it be reasonable to include all such individuals within the pool.

Consider individuals at other sites doing the same at risk roles – where individuals move around sites and all do the role that is at risk, consider whether each of those individuals needs to be pooled.

Bumping – if you haven’t heard of ‘bumping’ you’ll need to learn fast! Bumping occurs where an at risk employee is retained in favour of an employee who isn’t at risk (usually as they have better skills for the retained role). While there is no obligation to bump, you need to consider whether it’s appropriate to do so and make a note of your thought process.

Consult – once you’ve decided on your pool, you’ll need to ensure that you discuss the pool with at risk individuals before going ahead and applying a selection criteria. A fair redundancy process includes giving individuals the right to challenge the pool before scoring at risk individuals.

Get in touch if you need support or advice on who to include in your pool. In update #8 of this series, we’re going to be looking at creating fair selection criteria. 

This update is accurate on the date it was sent (01 September 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.