Small Employer Needs Advice

kidsun

Hi
I own a very small business , I employ 3 staff . I also work in the shop myself . I have no experience of redundancy or employment law , and last week was the first time I have made anybody redundant in over 10 years of owning the shop . One of the staff is less experienced and skilled than the other staff , she is also the only one at her grade , and she is costing the business more than she is making , ie , she is making a loss , and she was selected for redundancy .
The letter was given , with no consultation , and she appealed the decision , stating the reason of no consultation.
I have had differing advice so far , ACAS has told me that I have no legal right to consult with staff about redundancy although I must be able to show it is a fair decision .Others have said I am in breach and should have consulted . Either way , I didn't know what I should do now for best.
I have a meeting planned with the staff member , an appeal meeting , and I'm at a loss what to do , to rectify the problem . I am considering rescinding the notice , starting a consultation process , and then , probably , giving out the redundancy notice .
Any ideas ?

olly300

If you don't know the law then instead of getting conflicting advice from a forum (which you will get) you need to pay for advice.

Either join a local business group or go and see a solicitor.

If you don't do this now you could be taken to a tribunal and it will cost you more in solicitors fees and paying the worker off, than if you went and got paid advice in the first place.

omen666

olly300 wrote: »

If you don't know the law then instead of getting conflicting advice from a forum (which you will get) you need to pay for advice.

Either join a local business group or go and see a solicitor.

If you don't do this now you could be taken to a tribunal and it will cost you more in solicitors fees and paying the worker off, than if you went and got paid advice in the first place.

this +1 .

concerned43

I believe ACAS to be correct as you are making fewer than 20 people redundant, however you should check with the likes of Business Link who can guide you for free rather than wasting money on expensive lawyers.
PS - they also have an interactive tool on their web site that you can use to ensure you are doing it correctly.

Uncertain

Although the information on BusinessLink is well written and should (one hopes!) be accurate it only gets you so far. It relies on you correctly reading and understanding ALL of the factors that could affect your particular case. It doesn't ask you questions in the way a solicitor or other professional advisor could.

Simply phoning ACAS may not be the entire answer either. OK, the advisor can ask you some questions but he / she will only be qualified to a fairly basic level.

Remember too that if you end up with a disgruntled ex employee who is determined to fight (and it looks that way) they have nothing to lose. It will cost you a significant amount of time and money even if you ultimately win. Unless their case was judged to be malicious or totally without merit you will not be awarded any costs. Given that you are getting conflicting advice it seems unlikely their case is without any merit!

I would accept the fact that you need to pay for some advice from a professional accountable source. Do make sure you tell them everything, don't miss out the bits that are in the employee's favour!

Uncertain

kidsun wrote: »

Hi
I am considering rescinding the notice , starting a consultation process , and then , probably , giving out the redundancy notice .
Any ideas ?

This will make it very easy for them to argue the "consultation" was a sham.

Another option may be to offer the person a Compromise Agreement. This is a legal document where the employee agrees to go quietly in exchange for a sum of money, usually an agreed reference and an agreement to keep the details confidential and not speak ill of each other. The employee has to receive independent legal advice, by law, as they are signing away all rights to make a claim. Obviously you would need to offer more that the bare minimum redundancy money but this would then be the end of the matter with no possible comeback.

Again, see a solicitor.

getmore4less

How long had they been working for you?

kidsun

The employee has been working there for over two years .
I'm led to believe that I don't have to consult so long as I was fair , as she is the only girl in that positiuon surely it is fair ?
I can also show that she was costing money , previously she had her hours reduced in an effort to cut costs .
I only want is fair myself , I'm not trying to stitch her up . Its a small business with no experience of redundancy .

Uncertain

kidsun wrote: »

I only want is fair myself , I'm not trying to stitch her up . Its a small business with no experience of redundancy .

Then get some professional advice and do it properly!

As she has been there over a year she has easy access to make an employment tribunal claim if you get anything even fractionally wrong.

It will be cheaper in the end!

Ewarwoowar2

kidsun wrote: »

The employee has been working there for over two years .
I'm led to believe that I don't have to consult so long as I was fair , as she is the only girl in that positiuon surely it is fair ?
I can also show that she was costing money , previously she had her hours reduced in an effort to cut costs .
I only want is fair myself , I'm not trying to stitch her up . Its a small business with no experience of redundancy .

The idea of the consultation is to give the employees enough information so they can possibly come up with ideas to avoid redundancy.

You then consider the information from the employees and make a decision whether redundancies will be necessary.

If you still want to make redundancies, then you select a pool of people at risk of redundancy e.g. all the sales people or people with similar skills. You then go through a selection procedure, using a clear and open scoring system. The person or people with the lowest scores are then made dismissed. It is advisable to meet with the employee selected for redundancy prior to dismissal to give them their scores and a fighting chance to argue that they shouldn't be made redundant. Once dismissed, they should be give the opportunity to appeal the decision.

If you are making 20 or more people redundant, there is a statutory redundancy process. If you fail to comply with this, the employees are entitled to up to 13 weeks wage. This doesn't apply to you. All employers used to have to comply with a set three-stage procedure when making any employees redundant, but that was removed in April 2009. The dismissal has to be generally fair.

The tribunal will accept that you are a small business with limited resources. As long as the need for redundancies is genuine, i.e. you don't have another ulterior reason for dismissing the employee, the tribunal will not really question your decision to dismiss. They might be unhappy that you didn't consult with the employee and give you a slap on the wrist (award the employee about 4 or 5 weeks pay).

As a poster said above, going back through the consultation period may look like a sham.

My advice, as an employment solicitor would be to meet with the employee you've given notice to, ask whether she or he wants to appeal the decision. If so, ask them on what grounds. You can then deal with any complaint the employee has by way of appeal. For example, if they complaint that they were unfairly selected, you can look again at this. If they complain that they were consulate with, you can explore with them whether it would have made any difference.

PM me if you have any more questions.

kidsun

Thanks ewar , I've PM'D you .