• Robert Spicer

Redundancy: time off to look for work

TIME OFF TO LOOK FOR WORK

Employees with at least two years continuous employment are entitled to reasonable time off during a redundancy dismissal notice period.

Reasonableness involves a balance between the needs of employers and employees. Time off must be allowed during working hours.

References:

Dutton v Hawker Siddeley Aviation Ltd [1978] IRLR 390, EAT

Ratcliffe v Dorset CC [1978] IRLR 191, EAT

COLLECTIVE CONSULTATION

Trade Union and Labour Relations (Consolidation) Act 1992,ss. 188-198

Employers must inform and consult with representatives of workers who may be affected by proposed redundancy dismissals or by measures taken in connection with those dismissals.

This arises where 20 or more workers are proposed to be dismissed at one “establishment” within a period of 90 days.

There is no precise definition of “establishment”. In general terms, it is the unit to which employees were assigned to carry out their duties.

Seahorse Maritime Ltd v Nautilus International (2019) Morning Star, February 15, Court of Appeal

S Ltd, a company based in the UK, supplied crew members to ships operated by other companies, including Sealion Shipping Ltd, which were mainly based outside the UK. S Ltd’s employees were required to work on any of Sealion’s ships. Most worked on one ship from four to six weeks and some moved between ships. In 2015 Sealion took some ships out of service, putting crew members at risk of redundancy. Nautilus, the trade union, claimed protective awards on the basis that S Ltd had failed to consult with it although it was proposing to dismiss 20 or more employees. The union had to show that the fleet of ships counted as an establishment. The ET accepted that the whole fleet was an establishment. This decision was upheld by the EAT and S Ltd appealed to the Court of Appeal.

The appeal was allowed. As crew members were assigned to particular ship, each ship was an establishment and there was no obligation to consult. There was not a sufficient connection between the ships and the UK for the case to come within UK law.

Failure to inform or consult can result in a claim for a protective award.

Government department employees, the police and armed forces are excluded.

Fixed-term employees: excluded unless it is proposed to cut short their contracts.

Redundancy has a different definition for these purposes: it includes dismissals for reasons not related to the workers concerned, for example reorganisation. Consultation applies in the following circumstances:

· Where the employer proposes variation of contracts

· Where the employer proposes to redeploy workers on substantially different contracts.

The general principle is that consultation must take place with trade union representatives or with elected worker representatives.

“Affected employees” includes workers who will not be made redundant but whose working conditions will be changed.

The following points are relevant to collective consultation;

· Where it is proposed to make 100 or more workers, consultation must start at least 45 days before the first dismissal. Where the redundancy proposal is for at least 20 but not more than 100, consultation must start at least 30 days before.

· Consultation must begin when an employer is contemplating collective redundancies.

· Consultation means negotiation. It must take place when redundancy proposals are at a formative stage.

· Employers must disclose in writing the following:

· * Reason for the proposals

· * Number of employees proposed to be made redundant

· * Proposed methods of selection

· * Calculation of redundancy payments.

· Where there is no trade union or elected representatives, each affected worker must be provided with this information.

QUESTIONNAIRES

The use of a questionnaire to obtain information from an employer is no longer governed by statute, and the ET has no power to draw an adverse inference from an employer’s failure to answer.

Questionnaires are now covered by detailed ACAS guidance. There is no set form. The Legal Action Group recommends that questions should be set out in the following categories:

· Information on the facts of the matter

· The treatment of other workers

· Statistical and procedural issues.

SUMMARY OF REDUNDANCY ISSUES

· Time off work to look for new employment

· Eligibility for redundancy pay

· Eligibility for unfair dismissal claim

· Chances of success of claim

· Potential amount of compensation

· Eligibility for discrimination claim.

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