As the wheels fall off time’s winged chariot and Old Father Time is evicted from his nursing home;

And as the Partygoer of Unquenchable Thirst  prepares to meet the Office Party of Bitter Experience, it’s that time of the year again: the annual review.

For me, there seems to have been only one story this year and that is the proposed reforms to employment law. Well, and the abolition of retirement and the introduction of the Agency Workers Regulations I suppose, but despite these developments the government spent all year initiating consultations and reviews and calls for evidence on how to “rebalance” the workplace, where the delicate balance of employee rights versus employer obligations seemed to have toppled over in favour of the worker and the economy was in danger of collapse as a result – or was that because of the Eurozone crisis and a double-dip recession?  No one seemed quite clear but something must be done and giving the workers a good flogging, metaphorically if not literally, always boosts morale.

And last month, after several more of speculation, leaks and gossip, it all started to take shape:    unfair dismissal rights will take a year longer to acquire, fees will be needed before you can issue proceedings or go to trial and HM Courts and Tribunal Service can reduce the size of their furniture bill by only requiring one Judge, rather than three to hear the remaining unfair dismissal cases. We might also end up with Protected Conversations, which will supposedly allow employers and employees to have full and frank chats about problems in their employment relationship and sort things out without the need for throwing of toys and rushing off in a sulk to an Employment Tribunal.  Finally, we’ll also have a shedload more consultations and calls for evidence.

As we end the year those perennial favourite, pay awards for top executives and bankers bonuses made an unwelcome return to the front pages.  Nick Clegg said in a rather unwise comment that he abhorred overpaid people getting paid too much. Risky given his record I’d have thought. Christmas party articles   - there have been the usual seasonal glut.  I managed to restrain myself this year, mainly to avoid falling foul of the Twitteratti, who took agin them. You know the type: the office party is still the workplace, don’t photocopy your bottom, fondle members of the opposite sex , or get drunk and then have a most definitely Unprotected Conversation with your boss/colleague/subordinate.

But aside from all that, did anything else actually happen in UK employment law? Somewhat worryingly a couple of my employment lawyer friends were made redundant (ok, not a representative sample I know), suggesting that the popular perception that employment lawyers are submerged with work and thus raking it in may be rather wide of the mark.  I was even forced to cancel my order for a new Aston Martin and I got rid of the personal jet some time ago.

Redundancy has been a constant issue this year.  Not only has the government put forward proposals to simplify the consultation requirements, but as an article  in December’s ELA Briefing put it, there have been a number of cases involving redundancy that definitely advantage employers.

Small businesses in particular are supposed to find making redundancies difficult and are concerned about getting the procedures wrong. The position has eased since the statutory dismissal and grievance procedures were repealed in 2009 and the current ACAS Code of Practice excludes redundancies from its scope.  Employers still have consultation obligations, but the penalty for getting it wrong is nowhere near as bad as it was since the automatic uplift was abolished.

Disgruntled employees often complain that a fair procedure wasn’t followed, that they were scored wrongly against the criteria used or the criteria was flawed in some way.  In Dabson v David Cover & Sons Ltd it was held that the marks awarded by an employer in a selection exercise should only be investigated “where there was an absence of good faith or obvious error”.  That is a high burden for an employee to overcome, even where there are problems with the selection process.

Many redundancy situations involve a reorganisation or restructuring of the business, so not only is it a question of selecting whom is to depart but who is to be redeployed into a new role.  Arguments often arise over whether the new role is really different or the person appointed is suitably qualified, especially when two colleagues are competing for one consolidated role.  These issues arose in Morgan v The Welsh Rugby Union  and it was held that the employer hadn’t acted unfairly, even though they seemed to make a complete mess of the whole process.

Some other stuff did happen, aside from redundancy.  In October, retirement was finally abolished, so if you are still lucky enough to have a job you’ll probably be in it until you die.  The default retirement age of 65 has been consigned to the long grass and now an employer cannot ask an employee to retire just on the basis of their age. Instead the individual can carry on working until they choose to pack it in.  Actually this isn’t quite the whole story: a business can have a retirement age but they will need to be able to justify it otherwise they might get sued for age discrimination unless, of course they can have a productive Protected Conversation  (they can’t, not if it circumvents discrimination legislation).

Also in October we had the introduction of the Agency Workers Regulations, which give those workers with contracts of employment with a job agency but who actually toil for an “end user” elsewhere a modicum of protection on pay and benefits after 12 weeks continuous service.  The government has already committed to reviewing the Regulations in a couple of years time, mainly to keep the business lobby quiet.

The list of potentially protectable beliefs under the Religion and Philosophy part of the Equality Act was added to, with belief in “Green issues” established last year by Grainger PLC v Nicholson, being joined by a belief in the ethos of the

Joe Hashman

BBC, and being fervently opposed to fox hunting (Hashman v Orchard Park Garden Centre).   However wearing a poppy isn’t a protected belief (Lisk v Shield Guardian)  and a former soldier who was not allowed to wear a poppy at work failed in his case because the “cause” (recognising the sacrifice of others) was too narrow to be recognised as a philosophical belief.  In August Bedford Employment Tribunal refused to accept that BDSM (Bondage, Domination and Sado-Masochism) was a protected belief.

If the thought of BDSM has you wincing in pain or shaking your head in disgust or disbelief, consider also the recent report in the Irish Independent that says more and more men of a certain age are undergoing “nip and tuck” jobs to compete with younger men, not just in the dating market but the workplace jungle as well.   Is this proof that age discrimination still lurks unchecked or welcome evidence that finally gender equality has hit the workplace and now men are just as vulnerable to being judged by their looks as women have always been? And would a session with Miss Whiplash hurt more than having the spare tyre round one’s middle surgically removed?

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Back in February Nurse Laura Bowater made the headlines  after she was sacked for making a lewd comment at work. Thankfully she won her case, but not before getting to the Court of Appeal. I covered it in February and considered whether the result would have been different had she made her comment on Facebook (I think it would).

Saying something in the heat of the moment and then living to regret it is the usual theme when social media collides with employment law. This year has seen several cases of this sort, with freedom of speech colliding with reputational damage and no clear winner emerging. The underlying message for some time has been that employers need to have a social media policy to govern employees’ use of it.  This is particularly an issue where the comment is posted on (usually) Facebook; from an employee’s own PC or smartphone in their own time.  Most employers worry about reputational damage to them from such comments and seek to protect themselves accordingly.  However two cases showed the difficulties that can still arise.  In Crisp v Apple Retail an employee was held to have been fairly dismissed for making derogatory comments about Apple products.  Apple’s social media policy (which was subsequently leaked) prohibited any comment at all on either Apple or its products.  The comments were of an abusive (but not excessively so) nature and made comments critical of certain apple products.

However, in Stephens v Halfords PLC,   the Claimant was dismissed for posting critical comments on a company Facebook page following plans by Halfords to restructure, which would have meant working longer hours. Halfords has a social media policy which prohibited adverse comments and disclosure of confidential information. He  was dismissed for gross misconduct, but was finally held to have been unfairly dismissed. Halfords were criticised for undue reliance on the social media policy?  How do you reconcile these two cases? Is it the particular drafting ?  Or the fact that Stephens was apologetic and contrite whereas Crisp wasn’t? Or is it because Apple ‘s brand image is stronger than Halfords and thus deserves more protection in these instances?  I would hope it isn’t the latter because how then can you advise clients caught in this situation?  It isn’t for an Employment Tribunal to assess the strength of a brand: how could they? Does it mean that if you work for a small company that relatively few people will have heard of, you can get say more and get away with it? In none of the cases I’ve seen has actual reputational damage been proved to have occurred to the employer – either from customers or suppliers. These cases are all about the risk of damage occurring.  The law is uncertain and needs to be clarified.  Expect more cases next year.

One further issue on social media usage involving the workplace: Crisp v Apple confirmed that comments made on Facebook were public even if your privacy settings are set to maximum privacy.  The internet is not a private space because anyone linked to you can retweet or repost your comment. Also, never trust a “friend” on Facebook – they are usually the ones who bring the offending article to the attention of management.

The debate over s.147 EqA died down.  At the end of last year there was panic (mainly amongst Respondent lawyers) over the question of whether compromise agreements could validly dismiss a claim under the EqA because of some allegedly faulty drafting. Opinions from Learned Counsel were obtained arguing it both ways and the government talked about amending the legislation to remove the ambiguity.

The “Johnson Exclusion Zone” hoved into view following Judgment by the Supreme Court in the conjoined cases of Edwards and Botham.  For the best explanation I have read of what the cases mean turn to Laurie Anstis’  WorkLifeLaw blog post   on the subject. As Laurie says, any employment law decision of the Supreme Court deserves attention, but when it is a court comprised of seven of their Lordships (a full house in other words), it must be hot stuff.

Then the case of Michalak v Mid-Yorkshire NHS Trust hit the headlines last

Dr Eva Michalak

week, with possibly the largest ever discrimination payout to a former Consultant for unfair dismissal, sex and race discrimination.  The Daily Mail reported that the award would have funded an extra 210 nurses – maybe so, but wouldn’t it be better if employers stamped down on this type of behaviour in the first place instead of allowing a situation to develop where a woman’s career was ruined? It always seems ironic to me that NHS Trusts and Local Authorities etc usually have lengthy diversity and anti-bullying policies, yet when there is a horrendous case like this it more often than not seems to be against a public sector employer.

What’s to look forward to in the New Year apart from more pounds round the middle, fewer pounds in the pocket and a long haul through to half-decent weather in the Spring?  There should be some cases on employment status coming through.  In the case of Nadine Quashie, the ex-Stringfellows lapdancer, who has been given permission to appeal the decision that she was not an employee, that should be heard at some point in the New Year.    The decision of the Court of Appeal (again about employment status) in Tiffin v Lester Aldridge  has already (I understand) been heard and the Judgment should be handed down in the next couple of months as well. That may say some interesting things about the nature of partnerships and LLPs.

No doubt the first cases on age discrimination and retirement will start to trickle through and expect a glut of articles on managing employee absences during a certain sporting event next July.  I predict the emergence of a new workplace syndrome – “Olympic Fatigue”, affecting workers caught up on tubes, buses and roads by the vast increase in sports fans and bureaucrats travelling between venues and events, leading to unauthorised absences, stress and illness.

That’s it for now, my unscientific and highly personal round up of what caught my eye over the year.  I’d be delighted to have your comments or responses too, so please feel free to let me know how you saw 2011.  It only remains me for me to thank all of you who read the blog and leave kind comments.  It is very much appreciated, believe me.

I wish you all a very Happy Christmas and prosperous, non-litigious and lawyer-free New Year (unless you happen to be one or married to one, of course).

Related posts:

1. The Most Radical Employment Law Reforms for Decades? Or a Spectacular Own-Goal?

Review of 2011 – Radical Reforms, Unprotected Conversations & More originally appeared on Jobsworth by Michael Scutt on 21/12/2011.

There’s been only one story in the news this week: the gripping scandal at News International and the demise of the News of the World today.  Here are my thoughts, in podcast form for a change, on the employment issues involved.

Related posts:

1. Podcast#2
2. Podcast#3 – What’s coming in 2012?

Podcast#1 originally appeared on Jobsworth by Michael Scutt on 10/07/2011.

Choices, choices

Many employees often suspect they have been unfairly placed in the “departure lounge” when their company decides to restructure. Sometimes it is obvious there has been unfairness, or discrimination, in the process.  On other occasions it’s much harder to prove even if suspected and the recent case of Dabson v David Cover & Sons Ltd doesn’t help employees much.  On the other hand, employers will be relieved.

The main requirement for an employer seeking to make redundancies is to conduct a fair selection process.  The old mantra of “Last In First Out” can be problematic these days, so some other method needs to be found.  When a business decides to stop trading in a certain product then it may be fairly easy to say that all employees associated with that product should be made redundant, unless they can be redeployed elsewhere in the business.  Or if a unique role is being removed then the selection of the person carrying out that role is fairly clear cut.  However, what happens when you have ten people in a team and the employer decides it needs to reduce the size to five persons. How does an employer choose which employees to select?

The answer is to have a selection process using objective criteria. It’s not foolproof and how an employer scores the employee can be criticised.  For instance in De Belin v Eversheds the EAT held that it was wrong for an employer to artificially favour a woman on maternity leave in a selection when that had the effect of selecting a male colleague for redundancy.   There is still room for an employee to claim that they were unfairly scored against it.  Employees often claim that the manager scoring them either didn’t know them well enough to make a judgment or bore some grudge or were in some way biased against them. In the case of Mr Dabson, he argued that the manager who scored him did so unfairly and acted improperly in scoring him as he did. There had been a history of friction between the Claimant and the line manager.  On the facts as reported in the caser the final decision does look harsh on the employee.

However, the EAT held that the employer had acted reasonably and repeated previous law to the effect that it is only in a case where there is obvious mistake or an absence of good faith that the scores should be scrutinised.  Those will probably be exceptional circumstances and it makes it very difficult for an employee to challenge in these circumstances.  If employees want to run this type of argument they will need to gather their evidence together   as soon as they can.  Employers can’t relax completely though.  Challenges will still arise but provided an employer can justify their decision and show they have followed a fair and reasonable decision making process they should avoid an adverse finding at Tribunal, which isn’t to say that grievances won’t continue to be issued or letter of claim sent.

This decision suggests that employees don’t have things all their own way, despite what is often said.

Related posts:

1. How Should Employers Select Employees for Redundancy?
2. Redundancy – know your rights!
3. Consultation on Redundancy

Redundancy Selection: Now Harder for Employees to Challenge? originally appeared on Jobsworth by Michael Scutt on 22/06/2011.

Tomorrow I am chairing the SBK Legal and Strategic Guide to Workforce Restructuring.  It’s an all day conference with some very interesting speakers and covering a wide range of topics.  Click here for details.

There will be presentations on how to vary contracts of employment, how to adjust pensions, a review of the government’s planned employment law review, how to maintain a positive working relationship with Unions, as well as a session on “Realising redundancy savings: abiding by the rules to avoid a later backlash”.    The law on redundancy and procedure is particularly interesting to me and I will be especially looking forward to that session..

In the meantime my answer to the title question, pending tomorrow’s conference is: “with care”.  Many appeals and Unfair Dismissal claims arise from employees who claim they have been unfairly selected for redundancy.  How should employers who have identified the need to reduce headcount go about it?

Remember that roles are made redundant, not people.  If it looks like a person has been selected for redundancy not because of the role they do but because of who they are, a complaint may be sure to follow. The maximum compensatory sum that a Claimant can be awarded by an Employment Tribunal is £68,400, plus a “basic award” based on length of service and age, currently £400 per week of service. However a person who is chosen for redundancy because of a discriminatory reason, aka a “protected characteristic” under the Equality Act 2010 may be able to bring a claim that has no cap.

In cases where a whole team or desk is being closed, or a layer of management is being stripped out, it can be much harder to argue unfair selection.  It’s really only where there are, say, ten people performing a role and the employer wants to reduce that number to five, that selection processes need to be utilised to make sure the process is fair.

Selection criteria need to be as objective as possible – not always an easy task for an HR department tasked with drafting them – and must avoid any discriminatory factors.  For instance, LIFO (Last In First Out) whilst being objective may also discriminate against employees on grounds of age, because the newest people may be the youngest, although clearly not in every case.  Similarly, relying on attendance records may be unfair on disabled people if they have more time off sick. To minimise the risk of challenges disability-related absences should be factored out of the equation for redundancy selection purposes. Absence from work because of pregnancy or maternity related reasons should also be ignored, for obvious reasons.

In a sales team a good objective measurement might be the number of sales completed, but that is not always foolproof: an aggrieved employee might argue that they were given the worst accounts to maintain or they were hindered in some other way.  Having said that it can be very difficult for an employee to make such an argument stick.

Regular appraisals properly conducted also can assist in the redundancy selection process, although I have my doubts about “performance reviews”.  In many cases they just serve to de-motivate employees, but they do provide a historical record of how the employee has been working over a period of time and not just a snapshot at the point of termination.

What employers should try and avoid, if at all possible, is subjective criteria – soft skills are very hard to measure and has potential for an employee to claim that the person undertaking the assessment was either biased against them (their line manager for instance) or did not know them well enough to carry out an effective assessment (because the assessor was not their line manager).

As someone who regularly advises employees on redundancy selection issues, I would urge employers to try and be as objective as possible when making selection decisions.  Seek volunteers as well, because then there is likely to be less chance of issues over selection arising.

It’s a minefield, but one that can be negotiated with proper preparation and forethought. Remember the Scout’s old motto: Be Prepared!

I don’t give advice (legal or otherwise) through this blog, but if you need help with any of the above issues please do contact me at Dale Langley & Co at michaelscutt@dalelangley.co.uk.

Related posts:

1. Redundancy Selection: Now Harder for Employees to Challenge?
2. Redundancy – know your rights!
3. Redundancy Revisited

How Should Employers Select Employees for Redundancy? originally appeared on Jobsworth by Michael Scutt on 22/03/2011.

Sponsored Post

At a time of economic stress, turndown, worry and cuts, the job market seems as much of a stressful place as anywhere.

Many over the last few months might have experienced the brunt of the economy’s tumble, which will have seeped into the employment market and taken its tolls on jobs, with redundancies being a frequent way of cutting company costs.

An article by The Guardian newspaper made the suggestion a few years back, that a worker might evaluate their position to see if they were liable for a redundancy. If you were underpaid, overworked, and generally quite young, then it seemed your job was fairly secure. Redundancies back then, tended to take their toll on the older, more expensive and more experienced workers.

These were suggestions made in 1999. Now, however, redundancies can be made across the board, with companies evaluating their own situation far more crudely and cynically, with a culling of both younger and older members of staff.

Faced with these situations, it’s hard to know exactly what to do, given that it can often feel like it’s you against the company. If you are being asked to leave a company, big, wholesome payout or not; if your dismissal is one that you feel is unfair, then you are within your rights to contend it. Alone, however, it’s likely that you will not be able to challenge a large corporation.  At the very least, you should expect to have been taken through appropriate measures, to have been treated to the correct protocol and procedure leading up to the redundancy itself.

Remember, the company is not always right. If you are in any way worried or concerned that you have been ushered into a position of demotion, or worse, ushered into a position of redundancy, then ensure you invest in the advice and expertise of a law firm who specialise in these sorts of matters. For employment solicitors, London based, try Thomas Mansfield, who represent workers at all levels. Disputes can get potentially get nasty, so always make certain you have the help of legal support if you proceed to an Employment Tribunal or Employment Appeal Tribunal.

Related posts:

1. Consultation on Redundancy
2. Redundancy Selection: Now Harder for Employees to Challenge?
3. Redundancy Tracker

Reflecting on a Redundancy originally appeared on Jobsworth by Michael Scutt on 15/03/2011.

How much tax should employers deduct from termination payments? HMRC have announced a change to  the way that lump sum termination payments have to be taxed by employers from this coming April.

As is well known, the first £30,000 of a compensation payment can be paid free of income tax and national insurance contributions, provided that it is paid as compensation for “loss of office” or employment. This commonly applies on redundancy, but can apply in other situations too.

Any balance above the £30,000 is taxable at the employee’s marginal rate of tax.  This is because of a long established concession contained within ss.403 – 404 of the Income Tax (Earnings and Pensions) Act 2003. Useful links from the HMRC website are here and here.

Such payments are usually made once a compromise agreement or COT3 has been entered into  and the employee’s employment has terminated.  The compensation payment won’t have been included on the P45.  It is important that the payment must not be contractually binding, otherwise the tax concession is lost.  Most commonly this will affect those employees being made redundant.

Usually, the employer will deduct basic rate tax only from the balance and then to leave the employee to account to HMRC in due course for any higher or additional rate tax that might be due.   This can, depending on when the payment to the employee is made give them several months before that tax has to be paid – usually by 31st January following the end of the relevant tax year.

In these straitened economic times, HMRC has decided to clamp down on this practice and will, from April 2011, require employers to deduct basic, higher and additional tax from such payments.  The effect of this will be that higher and additional rate  employee tax payers will receive the net sum, rather than having to hold some of the payment back to pay their tax.

It will prevent them investing the higher or additional tax element themselves until they have to account to HMRC for it and pocketing the interest gained on it during that time.  The detailed guidance for employers will be published next month.

The taxation of payments on termination can be a complicated issue and I recommend that you take expert advice from a solicitor or accountant if you have any concerns.

Please note that nothing in this blog constitutes legal advice to you and is just my understanding of the law.  I only give advice via Dale Langley & Co and please do get in contact via michaelscutt@dalelangley.co.uk if you need some.

Related posts:

1. When is an Ex-Gratia Payment a Notice Payment?
2. What lies ahead in 2010?

Termination Payments: Taxing Times Ahead for Employers originally appeared on Jobsworth by Michael Scutt on 20/01/2011.

Following the Comprehensive Spending Review we now know that 490,000 public sector jobs are to be axed over the next four years .  Mass redundancies look like the order of the day and the misery won’t be confined only to the public sector. The private sector, a good chunk of which relies on the public sector for business, will suffer as well.  The pain that we’ve all been promised is there to be seen and losing your job can be traumatic.

I’ve written on many occasions before about the law concerning redundancy and selection procedures and two articles you can read are  here and here or check out the “redundancy” category on the right hand side.

What I want to write about today is more my personal observation on redundancy from experience over the years of helping clients landed in this situation.

My day job is as an employment lawyer advising both employees and, less frequently, employers, in employment disputes.  I’ve seen more people than I can recall who have come to me with compromise agreements following redundancy programmes.  The clients have ranged from junior employees to the most senior; some have been devastated by the rejection, more have just been merely angry and, a few, have been delighted. One client I saw years ago was ecstatic because he had secured a new job and was going in on Monday to hand his notice in when he got summoned to see HR instead and the “bad news” was broken to him.  He had difficulty keeping a straight face, so he told me: a fat redundancy package and a new job to go to. He was quids in.

Of course, that sort of thing happens very rarely and only to the very lucky.  For most people though new work can be found and many of my clients go on to start new careers.  I’ve also lost count of the number of people who have subsequently seen their (initially unwanted) redundancy as a fresh start. Don’t forget that a redundancy payment can be used to start a new business as well.

I also spend a lot of time advising clients on what their contracts of employment mean, often when they’ve just received it from a new employer.  Quite often I’ll have helped the same client with their compromise agreement.   In other words, redundancy doesn’t mean the end of your career.  There are always jobs out there and people do get re-hired.

There are also career consultants who can help in rebooting your career and I would always recommend taking up “outplacement assistance” if it is offered as part of your employer’s redundancy package.  If it’s not offered, ask for it. Twitter is full of people offering career advice.  For an example of someone offering excellent advice on making a fresh start take a look at Energise Brand Communications, and home to Liberate your Talent.com.

This may all seem facile or complacent to some readers, but don’t give up hope.  Redundancy  can be the catalyst for positive change.

For other helpful resources try these sites;

Dale Langley & Co

DirectGov

Hargreaves Lansdown wrote an interesting article on the financial issues to consider on redundancy.  I’m not endorsing them (or  Energise above) in any way with this link but it does have some useful information.

But only the end of this post.  Of course, if  you do need LEGAL advice on redundancy please give me a call on 0207 464 8433 or michaelscutt@dalelangley.co.uk for a non obligation, free, preliminary discussion.

Related posts:

1. What is the cost of redundancy?
2. Redundancy – know your rights!
3. Redundancy – what's going on?

Redundancy: Not the End of the World originally appeared on Jobsworth by Michael Scutt on 30/10/2010.

Redundancy hasn’t been in the general news recently, although Eversheds, the national law firm did hit the headlines when it was successfully sued by a male employee it selected and made redundant.  He alleged that he had been the victim of sex discrimination because he was not scored as well as a female colleague, in the same selection pool, who was on maternity leave at the time. She was scored more favourably because the firm feared doing anything else would have exposed them to a claim for sex discrimination from her.  Eversheds are appealing the decision.

This is an unusual case and not just because it was a man who was claiming he had been treated less favourably than a woman.  For a claimant (employee) it is usually quite difficult to challenge the selection pool and rationale for making the cuts: it is usually easier to criticise the process used.  The Eversheds case highlights to employers that they need to be very careful how they draft and implement selection criteria.

If you need advice on any aspect of redundancy, whether you’re an employer or employee, please do get in touch with me: 0207 464 8433 or michaelscutt@dalelangley.co.uk

Related posts:

1. Redundancy Selection: Now Harder for Employees to Challenge?
2. How Should Employers Select Employees for Redundancy?
3. Redundancy – what's going on?

Redundancy Revisited originally appeared on Jobsworth by Michael Scutt on 30/05/2010.

Ok, imagine the scenario.  You’re told on Friday morning at 9.35 a.m to go to the 7^th floor and meet Siobhan, your HR generalist.  Only HR live on the 7^th floor, not real people.  You go into a meeting room with her and there is Charles, your line manager or maybe Fiona, who is really quite senior in HR but not usually seen during the hours of daylight.  You’re handed a lengthy letter and told that your role is at risk of redundancy.  What do you do?

Answer: try and get as much information out of Siobhan and Charles/Fiona as you can.  What to ask?

1. What is the company doing?  Is it a restructure/rationalization/other reason.
2. Why you?  Crucial – why is your role in the organization no longer needed? 
3. What will happen to your work once you’ve gone?  Will it be divided up amongst remaining people/sent to Bangalore/no longer needed because the business is getting out of that sector?
4. Who else is at risk?  If your role is a unique one and a layer of management is being stripped out of the organisation, this is less relevant.  But, see next one down. What is the selection criteria they are using? 
5. What is the selection criteria they are using? If there are ten in your team and five are being put at risk, how has the company decided you should be placed at risk, but not Tony who sits next to you?  Selection criteria must be objective as far as possible.
6. What is your score against the criteria?
7. How did your comparators score?  Usually HR won’t give you this information because of confidentiality reasons, but you can ask to be given it on an anonymised basis.
8. How many people in your “establishment” are being placed at risk?  If more than 20 or 100 then time limits for consultation apply.  Get suspicious if HR won’t tell you.
9.  What other roles are available?  Redundancy should be the last resort.  Employers should try and exhaust all other possibilities before dismissing you.  Have they thought of pay-cuts or unpaid leave, or could they redeploy you to another part of the business, making use of your transferable skills?
10. What is the timescale for the process?  When will the decision be made?  When will we have the next meeting?

Finally, the 11^th question: where can I get some good legal advice on my rights?  Answer: here.

I can help you with all these issues, or advise you if you’ve been given a compromise agreement.  Please call me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.

Related posts:

1. Just been made redundant? Don’t forget …
2. I'm being made redundant – what do I do?
3. It's Christmas – I'm being made redundant!

10 questions to ask if you’re made redundant originally appeared on Jobsworth by Michael Scutt on 08/10/2009.

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Related posts:

1. Leaving your job? Three things not to do before you get your P45

Things employers shouldn't ask … originally appeared on Jobsworth by Michael Scutt on 02/09/2009.