Redundancy Consultation Period - ***Employer Settled Out Of Court***

[johnny28]

Hi All,

 

I have just been made redundant and was not given any consultation notice, I received a letter on 5th June 2010 stating the proposed redundancies, then on 12th June 2010 received a letter saying that I have been made redundant.

Over 100 people were made redundant in the company, now I'm sure that if 100 or more people are made redundant then we are to have a period of 90 days consultation notice.

The company have stated that although 100+ people were indeed made redundant, that the company is spilt into regions and that is is less than 20 people per region that is why they didn't give us any consultation notice.

From my understanding is that as a BUSINESS is they have collectively made more than 100 people redundany that we are entitled to 90 days notice, I can't find anywhere where it states that it can be done via regions/areas.

 

Can anyone help me on this one please?

Edited July 3, 2010 by johnny28

[Sidewinder]

They only need to collectively consult if there are to be more than 20 redundancies at a particular establishment over 90 days or less. There may also be a clause in your contract which entitles you to certain treatment in the event of redundancy.

 

The issue of whether you have been consulted individually or not may still be relevant depending on the circumstances of the redundancy. Although redundancy is a potentially fair reason for dismissal, the consultation process is designed to explore all available opportunities for those at risk to continue in employment, so important criteria would include any other available positions, whether all or only some staff were involved (otherwise there would have to have been a pool of staff at risk and the unlucky ones selected from that pool), whether there was an opportunity to redeploy staff at an alternative site etc.

 

If there were opportunities to remain in employment, or if the selection process was unfair, then the failure to consult might land the employer in trouble. If you can prove that the dismisal itself was unfair, then you may have a case to take action, however if the redundancy itself was unavoidable, then the failure to consult, although in itself unfair, would not necessarily render the dismissal unfair.

[johnny28]

They only need to collectively consult if there are to be more than 20 redundancies at a particular establishment over 90 days or less. There may also be a clause in your contract which entitles you to certain treatment in the event of redundancy.

 

The issue of whether you have been consulted individually or not may still be relevant depending on the circumstances of the redundancy. Although redundancy is a potentially fair reason for dismissal, the consultation process is designed to explore all available opportunities for those at risk to continue in employment, so important criteria would include any other available positions, whether all or only some staff were involved (otherwise there would have to have been a pool of staff at risk and the unlucky ones selected from that pool), whether there was an opportunity to redeploy staff at an alternative site etc.

 

If there were opportunities to remain in employment, or if the selection process was unfair, then the failure to consult might land the employer in trouble. If you can prove that the dismisal itself was unfair, then you may have a case to take action, however if the redundancy itself was unavoidable, then the failure to consult, although in itself unfair, would not necessarily render the dismissal unfair.

 

 

But surely there should have been a period by which they would have time to consult, as per the direct.gov website.

When you mean establishment do you mean in one office, so if a company have several offices around the country and 20 staff from lets say 6 offices (so thats 120 people) are made redundant does that mean you take the whole amount 120 of people being made redundant or 20 people from an individual office?

Edited July 3, 2010 by johnny28

[Sidewinder]

But surely there should have been a period by which they would have time to consult, as per the direct.gov website.

When you mean establishment do you mean in one office, so if a company have several offices around the country and 20 staff from lets say 6 offices (so thats 120 people) are made redundant does that mean you take the whole amount 120 of people being made redundant or 20 people from an individual office?

 

'Establishment' is difficult to define. The general opinion seems to be that if there are branches of a parent company, each with their own management structure, permanently constructed, defined as an employee's normal place of work and able to operate with a degree of independence from the other sites, then they are likely to be separate establishments. Branches of a chain of shops, for example, would most likely be separate establishments, however for a team of field workers, collecting tools from a lock up, this would be unlikely to represent an establishment. Using your example, 20 people (well let's say 19 so that it is under the '20 or more' threshold) from each of 6 offices would probably not require collective consultation, as an office would most likely be situated in a permanent construction, with some form of internal organisational structure under the control of a manager/supervisor, even if some functions were managed centrally (eg payroll, HR, IT).

 

Although the dismissal may in itself have been fair, you still have the right of appeal, and you should use this process. Although legally the company only has a requirement to consult collectively in the above circumstances, but that is not to say that you should not have had some form of individual consultation. As I said before, the process of consultation is to allow you to challenge the redundancy, make suggestions as to how this may have been avoided, explore other internal opportunities, assess whether your (hitherto unseen) individual skills may have been useful elsewhere in the company. The fact that you may have been denied the opportunity to present this during an individual consultation could render the process unfair, even if the redundancy situation was fair in itself. A Tribunal might in those circumstances award up to 13 weeks pay in compensation for the unfair consultation process.

 

Therefore, look at your contract and see if there is anything contained there about redundancy, appeal against the dismissal on the grounds that you were not given a meaningful consultation, or any at all in fact, and then consider whether you might have a case to take to a Tribunal. Give ACAS a call on 08457 474747 and ask for their opinion.

[johnny28]

'Establishment' is difficult to define. The general opinion seems to be that if there are branches of a parent company, each with their own management structure, permanently constructed, defined as an employee's normal place of work and able to operate with a degree of independence from the other sites, then they are likely to be separate establishments. Branches of a chain of shops, for example, would most likely be separate establishments, however for a team of field workers, collecting tools from a lock up, this would be unlikely to represent an establishment. Using your example, 20 people (well let's say 19 so that it is under the '20 or more' threshold) from each of 6 offices would probably not require collective consultation, as an office would most likely be situated in a permanent construction, with some form of internal organisational structure under the control of a manager/supervisor, even if some functions were managed centrally (eg payroll, HR, IT).

 

Although the dismissal may in itself have been fair, you still have the right of appeal, and you should use this process. Although legally the company only has a requirement to consult collectively in the above circumstances, but that is not to say that you should not have had some form of individual consultation. As I said before, the process of consultation is to allow you to challenge the redundancy, make suggestions as to how this may have been avoided, explore other internal opportunities, assess whether your (hitherto unseen) individual skills may have been useful elsewhere in the company. The fact that you may have been denied the opportunity to present this during an individual consultation could render the process unfair, even if the redundancy situation was fair in itself. A Tribunal might in those circumstances award up to 13 weeks pay in compensation for the unfair consultation process.

 

Therefore, look at your contract and see if there is anything contained there about redundancy, appeal against the dismissal on the grounds that you were not given a meaningful consultation, or any at all in fact, and then consider whether you might have a case to take to a Tribunal. Give ACAS a call on 08457 474747 and ask for their opinion.

 

 

Thanks side I will let you knwo how I get on with ACAS.

[Sidewinder]

Good luck!

 

FWIW I think your treatment has been shoddy to say the least. Proving that it is unlawful is the issue though.

[johnny28]

***UPDATE**** I started Court prceedings and 2 days before the court case the company settled with me 3 times what I was asking for

[Emmzzi]

nice

[Sidewinder]

Congratulations - a good result

 

Thread title updated!

[Mike_hawk]

Watch out for the tax demand next year, HMR&C seem to consider protective awards fair game again

[Sidewinder]

Certainly worth considering, but with the employer settling out of court for a notional sum, rather than allowing the ET to make an award it could also be held that the out of court settlement, or at least a large part of it represented damages for range of factors, and the amount represents restitution or damages to put the employee back in the position that he would have been had he been - net of deductions and the damages therefore subject to the Gourley principle.

[Mike_hawk]

Used the same argument........ 5 months and a dozen letters later still no decision, heyho

[Sidewinder]

Not surprised - wrong decision could set an expensive precedent!

[Emmzzi]

Might be helpful for others considering ETs to talk a bit about your experience, when you get a minute?

- the joy of paperwork

- mind games the other side play

 

etc?