Colleagues within scope of StAAR are now being faced with some stark choices as the fallout from the review begins to crystallise. In particular, those that have not been fortunate enough to survive the process of matching and slotting are being encouraged to apply for alternative roles often at a lower grade than their current one.
UCU understands also that managers are being briefed to advise staff in this position that if an employee does not engage with the process in this respect that they face the prospect of not being offered a redundancy (which may be the outcome once all avenues have been exhausted).
UCU believes that the approach being adopted is legally questionable at best, and has sought guidance from the UCU regional office on how the legislation around this issue is couched. The guidance provided is included for your information below, however for the avoidance of doubt UCU Committee are clear that a decision to withdraw from the process, however distasteful that process might be, should not be taken lightly.
If the employer has made the business case for a restructure that may result in redundancies they have to comply with the law regarding consultation. The purpose of collective consultation under section 188(2) TULCRA is to:
- Avoid dismissals;
- Reduce the number of employees to be dismissed; and
- Mitigate the consequences of dismissals.
Roles can be downgraded to avoid dismissals and can be used to support a case for a restructure. However, a post would not be considered redundant if the same role continued but on a lower rate of pay.
In a redundancy process, this is what the law says in relation to alternative work.
An employer should give employees at risk of redundancy the chance to apply for suitable alternative work. In general, failing to consider suitable alternative work can make a redundancy dismissal unfair. An employer should be looking for alternative employment opportunities from the moment they realise the role is at risk.
Offers of suitable alternative employment are covered by section 141, ERA 96. This states that any offer must be made before the old contract ends and must begin within four weeks of the date of the end of the original employment. An employee who unreasonably refuses a suitable role that is the same as or not substantially different from, their previous work can lose their redundancy pay.
The issue of whether work is suitable is considered separately from the question whether an employee is reasonable in refusing it, although there may be some overlap. The more suitable the offer, the greater the scope for the employer to show that refusing to accept it is unreasonable.
Whether work is suitable depends on objective, job-related factors such as the terms and conditions and the skills required, taking into account individual skills and experience. Work is normally considered unsuitable if it involves material changes in pay, skills and experience or status.
The reasonableness of a refusal to take up an offer often depends on subjective factors personal to the employee. The test here is whether the employee had sound and justifiable reasons for refusing the offer, taking into account personal circumstances such as domestic arrangements, health and housing.
The manner in which an offer is made can be relevant to the reasonableness of any refusal, especially where this has damaged the parties’ relationship.
The employee should be consulted about alternative work and given enough information to be able to decide whether it is suitable. Failing to do this is likely to make a refusal reasonable.
Where a member opts to accept a new job at lower grade to avoid redundancy, unions may be able to negotiate a period of pay protection preserving the old terms and conditions, known as “red circling”.