Redundancy Process Question

masefield

My wife previously worked in a pre-school which was on the same site as another private nursery which because of sustainability issues decided to merge, from September last year. Unfortunately, due to the ongoing financial situation the question of staff redundancies has now been announced.

The first consultation meeting has been held with a general invitation given as to whether any of the existing staff wished to apply for voluntary redundancy that any applications could be considered. At the meeting all staff were told that they were at risk of redundancy but that compulsory redundancies would be kept at a minimum.

My wife has now found out that one of the rooms that she currently works in is now subject to the possibility of compulsory redundancy. In the existing staff structure there are currently my wife and her colleague employed as a generic Deputy Manager, one of the Deputy Manager posts is being made redundant. In connection with the Deputy Manager position the only applicants that have been invited to apply are my wife and her colleague. My wife has been through an interview today together with her colleague. The result of this interview is not known at this stage and it is unclear at this time when the results of the interview will be announced. The terms and conditions and potentially rates of pay are remaining the same as the current posts.

The position of room leader is currently being advertised, however this particular post is being advertised externally, with a closing date of 8th April 2013. Again as above the terms and conditions of this post are identical. My wife is also having to submit an application form for the Room Leader position.

Two questions arise from the above:

1. Has the employer breached any provisions with the process for the Deputy Manager position - particularly given the fact that my wife has undertaken this position with no apparent capability issues being raised.

2. Has the employer potentially breached any statutory provisions in opening up the Room Leader position to an external competition. When my wife initially questioned the position about the Room Leader post she was advised that the external competition for this post had been the advice given by their HR advisors. This position would seem to be contrary to their initial position about seeking to keep compulsory redundancies to a minimum.

In connection with number two in my view there would be a potential position to challenge the whole process because potentially my wife having undertaken employment in this sector for nearly 20 years, that she could at the end of the process of being made redundant.

Apologies for the very large post and please do not ask for any clarification if there is anything that is not clear.

guyrandom

Hi Masefield,

Very sorry to hear about your situation, I work on a staff council at a company with 1500 people so I know a fair bit about the redundancy process!

1) No breaches that I can see. When you're making a single post redundant, you have to form a 'pool' of candidates from people who do the same or similar jobs at the same locations (or within near geographic reach).

The pool is based on employee skills & performance, attendance etc. In your wife's case there seem to be only two people in her redundancy pool, who could have equally good skills and attendance.
In summary, Both your wife and her colleague could be utterly fantastic at their jobs and they would still have to be in the pool, unless there were other employees doing the same job who were not good and had poor records.

2) This depends on what date the Room Leader vacancy was released and what date your wife was first told she was under consultation. If your wife was told she was under consultation before the Room Leader job was posted, then it should have been ring fenced for her and other internal candidates only. If you can let me know the exact dates I can maybe offer futher advice if the dates were very close together.

Best of luck and do your best to stay postitive.

masefield

Thanks for your response to question 2 - must confess that was my feeling. So far as dates were concerned the initial consultation letter was dated the 30th January 2013 - the Room Leader position has been advertised last Friday - in fact it has been posted on the Nursery facebook page today. Please could you advise further. Many thanks.

masefield

btw in connection with the above and your response the other half has just mentioned that the Room Leader vacancy had arisen prior to the otiginal consultation date - would this make a difference?

guyrandom

Based on those dates, under consultation from Jan 30th until present and the job being advertised last Friday, it should NOT be open to the public as long it would be classed as "suitable alternative employment" for your wife.

Whether a job is suitable depends on:

• how similar the work is to her current job
• the terms of the job being offered
• her skills, abilities and circumstances in relation to the job (e.g hours and childcare)
• the pay (including benefits), status, hours and location

- Would she like to have the Room Leader job?

- Would you class the Room Leader job as suitable alternative employment based on the above?



If her employer has suitable alternative employment and they don’t offer it to her without good reason, the redundancy is incredibly likely to be deemed unfair by an employment tribunal.

The key point here is that there is a legal duty on the employer, not the employee, to take reasonable steps to find suitable alternative employment where it exists for affected employees throughout the entire redundancy notice period.

One tip is to tell your wife to try and stay positive while under consultation as the more professionally she deals with it, still getting on with colleagues and managers, the easier it will be to work there after the process is over.

It's important to note as well, if she unreasonably turns down an offer of suitable alternative employment, she may lose the right to statutory redundancy pay.

Wishing you both all the bestt,

stay positive




P.S
To answer your hypothetical question:

If the Room Leader vacancy had been advertised to the public before 30th of January then it did not have to be ring fenced as the consultation process hadn't started yet and no employees were under consultation. (However if it hadn't yet been filled, then it could be withdrawn from the public and ringfenced for those under consultation)

masefield

I think that the Room Leader position would be classed as suitable alternative employmnet on the basis that the wife is more than qualified to do the job. The cynic in me has always had this theory that the Deputy Manager post will not be given to the other half and that she will also be unsuccessful in the subsequent room leader post.

The OH would like to remain employed but if unsuccessful she would have to consider taking further action.

Is the best policy be to wait and see what happens or is another option to consider is to ask her present manager as to whether she would consider that the Room Leader post would constitute suitable alternative employment. A reply in the affirmative would in my view possibly assist with any future action. Would be interested to note your further thoughts.

Incidentally, I perhaps must come clean and mention that I used to be employed by a local council who went through a restructuring process which resulted in the downgrading of my post and because I did not apply for my downgraded post I was made redundant. I was unsure based on what you had said previously as to whether the response you had given was a firm "statutory" position or was based on an agreed position where I used to work.

masefield

Further to the above the other point I would make is that the OH has been covering as Room Leader in her present role as Deputy Manager on every Friday since last September - so there is no real argument to say that she is not qualified to undertake the expected role. This role has been extended from the end of January to also include Tuesday afternoons and for the last three weeks a Friday afternoon.

getmore4less

People have succeded with unfare dismisal claims where an employer has failed to consider alternative posts.

There have also been succesfull claims when the posts should have been considered for bumping.
http://www.morton-fraser.com/publications/articles/2350_bumping_how_far_must_employers_go_to_avoid_a_finding_of_unfair_dismissal

guyrandom

masefield wrote: »

Further to the above the other point I would make is that the OH has been covering as Room Leader in her present role as Deputy Manager on every Friday since last September - so there is no real argument to say that she is not qualified to undertake the expected role. This role has been extended from the end of January to also include Tuesday afternoons and for the last three weeks a Friday afternoon.

Hi masefield,

If your wife is more than qualified for Room Leader and already does the job as cover on Fridays then it's 100% suitable alternative employment! open and shut case really.

I would not wait around and see what happens, the next step is to ask the manager and most senior person in HR, in writing:

"Why has the room leader post been opened to external candidates when it is suitable alternative employment for deputy managers facing redundancy and therefore is legally required to be ring fenced for employees at risk only?"

You need a written response from them. My guess is that they will realise, panic, aplogise and withdraw the post and ring fence it. If they don't then please keep in touch and i'll support you with next steps.

I hope they respond quickly

guyrandom

masefield wrote: »

Incidentally, I perhaps must come clean and mention that I used to be employed by a local council who went through a restructuring process which resulted in the downgrading of my post and because I did not apply for my downgraded post I was made redundant. I was unsure based on what you had said previously as to whether the response you had given was a firm "statutory" position or was based on an agreed position where I used to work.

It is a statutory position, however because the post they offered you was a significant downgrade, it can't be classed as suitable alternative employment - unless you agreed to the downgrade and would rather take the downgraded post than a redundancy payment.

If the post is equal or better and reasonably matches the employees skills, then refusing a suitable alternative post would generally mean forfeiting your redundancy payment and leaving anyway.