Recruitment and training
(or even retraining)

The above are essential in this climate where the fear of redundancy is ever present, but what does this all mean to the employer?

Employment (Jersey) Law 2003

Article 2,

a) The fact that the employer has ceased or intends to cease –
i) to carry on the business for the purposes of which the employee was employed by the employer; or
ii) to carry on that business in the place where the employee was so employed; or

b) The fact that the requirements of the business –
i) for employees to carry out work of a particular kind, or
ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.

Please note, the use of ‘intends to cease’ covers the situation where an employee does not get around to ceasing the business, the whole matter is the intention. Another point of note to employers is that in Karczewska v Armada Leisure Limited (Jersey) April 2010, the Tribunal made it quite clear they will not question business decisions.

We must all remember though that redundancies don’t just happen in a recession, they can also be as a result of increases in technology or efficiency.

The employee must be within the Employment (Jersey) Law 2003 to be protected from redundancy unlike in Yates v Alexander Forbes (Jersey) September 2009. The employee in question was 74 and thus outside the maximum age.

Procedure

Redundancy is a fair reason for dismissal but that can all go wrong on the procedure.

The starting position is to identify that you no longer require a particular role to be undertaken; thus the redundancies are about the needs of the business. This is crucial.

In order to minimise any potential claims for unfair dismissal we need to follow procedure fully and carefully and that may take several weeks.

The starting point is to identify the pool of people who are at risk. That pool of people must then be consulted as much as possible and never able to say that they were not fully informed. The first meeting with the ‘pool’ must confirm to them that redundancy is a provisional way forward and not certain. A definite decision including numbers can be given to the ‘pool’ once the consultation period has finished.

This ‘pool’ of employees should be given every opportunity to comment upon and respond. This part of the consultation must be thorough and meaningful. A failing at this area is usually the reason why a fair redundancy becomes an unfair dismissal.

In this consultation the employees must be given the opportunity to put forward their views on the proposed redundancies, to suggest alternative jobs or alternatives to redundancies. They can also ask any questions they feel they need to and can propose any information that they wish the employer to take into account.

The process must be transparent and patient and be communicated to the ‘pool’ at all times.

As part of this consultation the employer has to make every effort to look for alternative roles for the employees at risk. You should not make any assumptions about what the employee might be prepared to do or not to do. You should be prepared to provide full details of any available jobs. Employees must also be given appropriate time off to attend interviews.

Are there other ways the costs can be cut, such as can the employees at risk job share, take a pay cut or unpaid time off? All options must be considered with the employees at risk.

What is however crucial, is that everything is documented. The employees must be written to at every stage and you must keep notes and minutes of all meetings concerning this matter and all options discussed.

Employees will need time at each stage to consider their position and to prepare for meetings. They must not feel that they have been ambushed.

When the redundancy is confirmed both verbally and in writing the employee should be given the opportunity to appeal to someone in the business who has not been involved to date.

JACS have a model policy which says –

When a redundancy situation arises the employer should:

1. ban the recruitment of any new staff using internal candidates
2. restrict the use of sub contractors and temp staff
3. limit overtime working
4. consider short term answers such as reduction in wages, work extra days without pay, temp short time working or layoffs.

When redundancies are inevitable you must:

1. Formally consult with staff (they will have been invited by letter setting out what is to be discussed and giving 7 days notice of the date and time.).

This is classed as the warning stage. Identify to staff the department/pool ‘proposed’ to
be at risk, confirm how you will select (in this case you must be very careful about what other skills the employees have that may mean a person from another department is also at risk). There is no duty to discuss with employees who are not targeted for redundancy.

2. Further consultation (by written invite, please note they have the right to be accompanied) individually.

Now you will discuss with the ‘provisional’ employees concerned any ideas they have to move forward/ to avoid redundancy or voluntary redundancy and due consideration must be taken to their ideas and thoughts, especially redeployment (this would also be with other companies within the group).

3. Further consultation (by written invite again and they have the right to be accompanied) individually.

Now discuss any redeployment that may be on offer at the very least discuss that this has been considered.

4. Final consultation (again invitation in writing and the right to be accompanied) individually.

This is where the final decision is given and the right to appeal must be offered, this must then be echoed in writing to the employee.

Case law suggests that a consultation period should last between 1 to 4 weeks I would suggest the latter, with at least two meetings with the employees, it also suggests that there should be 30 days before the first dismissal takes place. Please remember a redundancy with no consultation would normally be unfair.

Payments

Amendment 5 introduced ‘Part 6A Rights on Redundancy’. More specifically Paragraphs 60A – 60E. All employees with over two year’s service are entitled to a payment of one weeks pay for each complete years service. Please note as of July 2011 the cap on the weekly wage was increased from ￡630 to ￡650 per week.

An employee has 6 months to present a claim to the Tribunal for redundancy (please note not the usual 8 week limitation).

In addition an employee under threat of redundancy is entitled to paid time off work to look for a replacement job. A Tribunal can enforce this right and award an amount in excess of that which the employee should have paid.