Workplace Issues Learning from the Frontline IER 20 th March 2013

Introduction (Slide 1) Government response to consultation on changes to collective redundancies rules December 2012: What the proposals are? What employers will still have to do? How unions can respond/impact for trade unions. First consider current legislation, s188 TULR(C)A 1992.

Collective Consultation – an Overview (Slide 2) S188 (1): ‘Where an employer proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected’ –GMB –v- MAN Truck & Bus UK Ltd [2000] IRLR 636

Consultation – “in good time” The consultation shall begin in good time and in any event : a)Where the employer is proposing to dismiss 100 or more employees…at least 90 days; and b)Otherwise, at least 30 days Before the first of the dismissals takes effect

Collective Consultation – an Overview (Slide 3) S188 (2): Consultation must include: Avoiding dismissals; Reducing the number of dismissals; and Mitigating the consequences of dismissals… With a view to reaching agreement Junk v Kuhnel[2005] IRLR 310 – negotiate UK Coal Mining Ltd v NUM [2008] ICR 163 – economic reasons.

Collective Consultation – an Overview (Slide 4) S188(4) information: 1. The reasons for the proposals to dismiss; 2.The numbers and descriptions of employees proposed to be dismissed; 3.The total number of employees; 4.The method of selection; 5.The method of carrying out the dismissals; 6.The method of calculating redundancy pay; 7.the number of agency workers including the type of work they do and where they do it.

Government proposals (Slide 5) Government claims that proposals for reform to pursue 3 objective: Improve the quality of consultation Improve the ability of employers to respond to changing market conditions Balance the interests of employees who are made redundant with those who remain

Government Response – (Slide 6) i.Consultation period where 100 or more employees halved from 90 to 45 days; ii.Definition of establishment to be included in guidance; iii.Expiry of fixed term contracts excluded; iv.Non-statutory guidance on a number of key areas affecting collective redundancies TULR(C)A 1992 (Amendment) Order 2013 in force 6 April 2013

What employers will still have to do? (Slide 5) i.Consult with appropriate reps where an employer proposes to dismiss between 20 and 99 employees for 30 days; ii.Enter into meaningful negotiations as per s.188(2); iii.Provide information under s.188(4) Protective Award – 90 days pay

Selection for Redundancy (Slide 9) Two issues on the extent of the employer’s obligation; Subjective/objective criteria for selection Mitchells Lancaster (Breweries) Ltd v Tattersall UKEAT/0605/11 -Nicholls v Rockwell Automation Ltd UKEAT/0540/11 What is the test where employees are required to apply for posts as part of a selection process Cumbria NHS Trust v Steel UKEAT 0635/11

What UNIONS can do (Slide 10) 1.Remind employers: i.that the 45 day consultation period is a minimum; ii.of their obligation to enter into meaningful negotiations under s.188(2); iii.that they may be at risk of claims for a protective award starting with 90days gross pay; 2.Argue less favourable treatment where fixed term employees are selected for redundancy; 3.Watch for employers who try to break down redundancies so that there are less than 20 redundant at one establishment.

Conclusion (Slide 11) Labour and European Law Review