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We take seriously our responsibility to keep you up to date so that you can use changes in employment law to commercial advantage. By understanding and interpreting the latest case law and legislation we can deliver updates to you that are concise and usable. With imagination, we are able to ensure that developing law can be used to allow you to achieve commercial solutions, cost effectively and expediently.

Series update #3 – be clear on your reasons

Posted on: August 6th, 2020 by Ginny Hallam

Whether you have a reduced requirement for employees to do work of a particular kind (redundancy) or you’re asking employees to change their hours or responsibilities, you need to be clear on your reasons.

Legally, you have considerable flexibility in arriving at your reasons but if you don’t communicate them effectively, a disrupted process and an increase in claims is likely.

Focus on business needs 

Consider business priorities, whether annual plans are on track and if not how they need to be adjusted. Is there reducing demand or increasing requirements, do particular roles need reshaping or are they no longer affordable. These will be the reasons a tribunal reviews in deciding whether your reasons for changes were genuine or whether you’re really dismissing for another reason (e.g. poor performance) but disguising the dismissal as redundancy.

No legal requirement

Although legally there is no need to demonstrate how you have arrived at your business reasons, it’s good practice so that employees accept your reasons are genuine. Sharing facts is useful – think basic spreadsheets, year on year figures, slide shows, customer testimonials. Allow challenge, be open and honest with your responses.

TUPE

If you’re reason for change is outplacement, you’ll need to take advice on whether you’re creating a TUPE transfer. However genuine your reasons, if outplacement creates a TUPE transfer you’ll need to take extra care when reshaping or making redundancies as employees subject to TUPE transfers are afforded enhanced employment law protection.

Geography

If demand in a geographical area has shifted meaning you need to move employees to different locations, check their employment contracts. If there’s a clause allowing you to move the employee (and you’re exercising it reasonably) then you can do just that on reasonable notice. If there is no such ‘mobility clause’, your reasons for the move are important and need to be shown as genuine.

The safest option before communicating your reasons to employees is to take advice. In update #4 of the series, we’ll be looking at communication and starting the process the right way.

 

This update is accurate on the date it was sent (5 August 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.