REDEPLOYMENT AND TRIAL PERIODS
I need urgent advice as I need to get my head round this quickly. It has taken twelve months of arguing to get them to agree to a policy so I need to make sure what we end up with is as good as I can get it. In the last 25 years I can count on my one hand the number of people made redundant with my present employer but the current climate has put paid to that so my TU colleagues and I are on a steep learning curve. I am currently involved in negotiating a redeployment policy but am very concerned regarding a couple of paragraphs relating to the trial period for redundancy.
The draft put forward by the employer suggests a default trial period of 4 weeks (no problem there). The draft suggests that the during the trial period the existing terms and conditions remain for the employee but salary may be adjusted to reflect the level of the post. Question: If the salary level of the post is less should not the existing salary remain at least until the end of the trial period?
It also states that after the 4 wks if the employer doesn't believe the role is suitable the employee will retain the right to statutory redundancy pay (I don't have a problem with this). It goes on to say that if the employee doesn't believe it is suitable "and this is agreed by the employer" s/he will retain the right to statutory redundancy. This is basically saying that if the employee doesn't deem it suitable she is stuck with it unless the employer agrees with him/her. Question: Is this correct - I thought that there was no obligation on either party during the trial period? Am I wrong? If I am wrong then should the redeployment opportunity be on the existing grade and salary?
Sorry may not be relevant but I also meant to mention that the employer refers to it being guidelines; not a policy. It say the guidelines are non-contractual and are not subject to collective agreement. It also reserves the right to review, amend or update them at any time. Which basically means that they do not intend to abide by them if it suits them to do otherwise.
By the sounds of it this “policy” is simply re-stating the legal requirements in the event of redundancy.
The basics are that if the job on offer is a “suitable alternative” then there is no need to offer a trial period – the employee can simply be redeployed. The employer might blur this a little, and be happy to allow redundancy if the employee does not want to take on the new role, even if there is no obligation to do so. You perhaps need to be clear on whether this applies to all switches in roles, or only those deemed to be where the new position is not a “suitable alternative” to the old one.
If, however, the job is not a “suitable alternative” then a four week trial must be offered (with both sides able to terminate during that period). If the trial is not passed (by either side’s agreement) then the original redundancy terms should apply.
During the trial the salary, and any other Ts and Cs should apply as for the new position. If there is a drop in pay then obviously the employee would not want to start the trial position until their notice period for redundancy had elapsed – so, if you were due to be redundant on 31st January, you would not want to start the trial until 1st Feb, giving you until 28th Feb to decide whether you like the job.
Like I say, that’s the statutory position (as I understand it). If you can negotiate a better deal – for example that salary is always maintained at the previous level – then all power to you.
I see no point at all in having a workplace policy that merely re-states the statutory provisions.
No workplace policy can alter these for the worse, so only if going beyond them is there any point in having one.
Employer seems to be at pains to make all this non-contractual, and if so, won't be obliged to do anything more than is required by statute.
There have been several precedents that wrestled with the difference between statutory and contractual trial periods. The outcome is that, in order to retain the right to a redundancy payment, there needs to be a STATUTORY trial period. These are normally for 4 weeks but can be extended in certain defined circumstances and it is most important that any longer period complies fully with the statutory provisions, otherwise rights to subsequent redundancy may be lost.
By definition, it's a 'different' job being tried, so why shouldn't the actual pay attached to it be tried too ? But you might ask the employer say to look at providing that the difference in pay gets added to any eventual redundancy payment as an ex gratia amount, if the trial doesn't work out.
Yes, the employer can very easily decline to keep the employee beyond the trial period, but, unless they do this for a valid and fair reason, then an unfair dismissal claim might be brought (just the same as if a trial hadn't been offered at all, when clearly it might have).
The employee too has quite a few statutory rights if they don't find it suitable themseves, but usually the alternative is just to revert to the redundancy.
You can readily look up all the statutory guff that applies, but suggest you get it clear in your head what's statutory and what's a a useful workplace enhancementr to that bare minimum.
Many thanks Bubbles and MonkeySteve for your comments. The whole purpose in trying to negotiate a redeployment policy is they are basically treating each department as a separate "establishment". There appears to be no legal definition of "establishment" and it is a loophole that basically means that they are only looking at redeployment possibilies where they exist within the department. Within this context the employer may be making more than 20 people redundant but only consulting over a 30 day since the total redundancies are not taking place within the same "establishment", i.e. the department. I have asked for statistics on the total number of redundancies planned within the next 90 period in ALL departments but the employer has refused to give this as there are four separate unions (it is a very large employer) and the employer has informed me that they do not have to inform me of any redundancies for posts that do not come within my sphere of influence.
This raises equality issues because there is no consistency of treatment between the departments and one department may be making a secretarial post redundant whilst a suitable alternative post may be being advertised in another department. There is anecdotal evidence that disabled staff are treated less favourably in some departments than in others.
There is also a further issue of the number of bullying and harassment cases all of which tend to (almost always) result in bullied person suffering various degrees of ill health which results in some form of compromise agreement once their sick pay runs out. I have long argued that in an organisation this size there should be sufficient scope for re-deployment where it has been established that there is an irretrievable breakdown in relationships. The employer has now introduced compulsory mediation as a means of forcing them to work together - this is not working either.
I am absolutelty certain that alternative employment opportunities need to extend to every department, division and even subsidiary companies.
Not to consider these as alternatives to enforced redundancies is almost automatically unfair dismissal.
As regards 'a single establishment' this is indeed ill-defined, but I don't think it's ever correct to count each dept or division as a separate 'establishment'
There is conflicting case law here, some from UK and some from EU, but from memory the arguments have concerned whether say construction sites run by the same building firm are separate or branch offices of the same insurance company. So do think the employer is very much open to challenge here and open to ££££ in protective awards if they've tried to dodge this.
If you are a union, then the obvious thing to mount is a class action to a tribunal about this - don't have all the facts, obviously, but sounds fishy to me !
Thanks for your reply bubbles. I can tell you that three of the largest UK unions have been consulted regarding this but all we seem to have had so far is a wringing of hands and unless they fail to consult there is nothing we can do. My particular union is apparently consulting with MPs to achieve clarity though this is little consolation to those who are losing their jobs in the meantime. Just my own opinion but looks as though each union is sitting back and hoping the others will take a lead and/or foot the expense. I have to say I am extremely disappointed as it puts us in a very difficult position at local level.
Nothing to stop one (or a few) of you from taking this to a tribunal - no expense, but a lot of potential gain.
No doubt employer would try to appeal, where it might get potentially expensive, but think even then that it might well go your way.
I would have to say that I agree that I can see little point in simply having a policy that says "we will do what the law requires" - and very little point in hand-wringing over what you cannot alter (the law on redundancy!). Perhaps for future reference rather than for now (in other words, much easier to introduce when the pressure is off) - I would never negotiate a redeployment policy alongside a redundancy policy. Redeploymnet is a much bigger issue than redundancy and deserves its own treatment - it may lie at the heart of a series of issues, which may include redundancy, but may also include "reasonable adjustments", return to work after sickness or maternity, reorganisation, retirement or part-retirement and, of course, bullying and harassment claims. There are significant benefits to an employer, never mind an employee, in effective redeployment policies, and they cost little or nothing - so they can be a good recruitment and retention tool as well. Worth keeping in mind even if you can't use the knowledge now - the tide will turn and when it does employers will once again be competing for the best staff and will need to reconsider all those knee-jerk reactions to the downturn.
Yes, I have to agree with Bubbles here – in fact he beat me to posting earlier when I had also typed “smells fishy”!
It seems very odd to me that any reasonably sized employer would have a policy that would appear to give employees a fairly straight forward win at a tribunal, either on unfair dismissal or on failure to properly consult.
Of course, the devil is in the detail, but as Bubbles says, those already made redundant under a shonky process might as well lodge an appeal and let a tribunal pick the bones out of it. I can see arguments in specific cases – for example that a secretarial vacancy in the Legal Dept might not be “suitable” for a secretary from the Finance Dept because of the background knowledge required for each, but this would have to be done on a case-by-case basis, and not an across the board treatment of all Departments separately.
Quite apart from the risk of losing at a tribunal, I’m also failing to see any great benefit to the employer – if they have a vacancy in one dept and someone in that grade being made redundant in another then it makes financial sense to save the redundancy money and switch departments. Although, it may be a wider issue of doing this to back up their “establishment” argument being used to dodge correct consultancy (and the other redeployment issues), or perhaps more ominously that redundancy is being used to prune a bit of dead wood and they don’t want to be bound to redeploy someone that they are happy to be rid of.
You've hit the nail on the head Shikahra. What I have been arguing for for many years is redeployment for cases of iretrievable breakdown of relationships following disciplinary, grievance or bullying and harassment cases. The employer always states the lack of a policy prevents redeployment, although we both know that the lack of policy would not be a barrier to redeployment if there was a will to do so. Thought this might be the ideal excuse to push for it but the statement that it is neither contractual nor part of a collective agreement is a clue there is no commitment on behalf of the employer and there is every likelihood it merely serves a purpose at this particular point in time and the guidelines will also quickly become redundant once that purpose has passed. I might be wrong.
Suggest that a procedure is absolutely unnecessary for redeployment either, in circumstances you outline.
I've rarely if ever encountered any such thing, and would immediately ask for exact reasons why needed and what it was supposed to achieve.
The need for redeployment can arise for all kinds of reasons; culpability of the potential redeployee will vary immensely; so will the level of insistence on compulsion involved un doing it.
For example, a manager recently warned for bullying a staff member might be redeployed away from them with compulsion, whereas colleagues who haven't done anything wrong except fallen out big time might if possible be OFFERED redeployment (or mediation, which is increasingly used now).
So, usually an ad hoc approach is by far the most sensible.
I think this may be a sectoral thing in terms of approach. Redeployment policies of this type are extremely useful in the public sector, which is why we negotiate them! They actually allow both employers and unions a much wider flexibiity in approach and set out clear guidance which ensures consistency. Admittedly their usefulness is somewhat limited at present because the public sector, like everyone else, has fewer vacancies floating around. But in cases were there is no evidence of bullying they can give additional options to the "forget it or resign" options, they can kick in at informal stages where someone is unwilling or unable to make a complaint - so they are not simply a "disciplinary sanction". They are also useful in "disciplinary neutral" situations where a relationship has broken down but there is no disciplinary or grievance route - people who simply do not get on for no particular reason other than that. In large public sector (and some third sector - the bigger ones) the policies are an immense benefit to everyone - which is why employers have them. You may recall that we recently spoke about one particular agency which had a "guaranteed 12 month redeployment" at full wages and terms and conditions for ANY employee who is made redundant provided that they accept "any meaningful employment" during that 12 months, leaving all their redundancy rights and "suitable alternative employment" options still running for the entire 12 months! Admittedly this is the most generous policy I have ever seen and it is now causing the employer substantial difficulty - but it is a very generous and extremely beneficial policy for everyone. Such policies may have lesser application in other sectors where redeployment options are not always as readily available, but I would still argue that where they are applicable they have merit. Hence, they should not be mixed up with negotiating a redundancy process - becasue that is not what they are about, even if they may sometimes be used in such a context.
Thanks Shikahra. I think we are on the same wavelength.