Executive Board Member Doug Christie discusses through the rights of workers when facing mass dismissals.
It is common knowledge that employers can be known to resort to almost any low to make their lives easier at the expense of their workers. Recent news that a UK fire service was looking into sacking firefighters and offering them re-employment only if they accept unilaterally imposed terms and conditions, including working more hours, is just another example of this type of unacceptable behaviour.
When it comes to mass dismissals such as these, steps can and should be taken to protect the rights of workers at risk of losing their jobs. Depending on the numbers involved, a mass dismissal may trigger a need for what is known as ‘collective consultation’ with the appropriate representative, i.e. the union. This forces employers to provide genuine reasons for the dismissals, and provides a platform for workers to challenge any opportunistic threats to their employment.
In an event of a mass dismissal triggering the duty to consult as described above, the employer must consult with the union 30 or 45 days (depending on the numbers) before the first dismissal takes place. As part of this consultation, the following information must be provided to the representative:
- The reasons for the proposals to dismiss;
- The numbers and descriptions of employees whom it is proposed to dismiss as redundant;
- The total number of employees of any such description employed by the employer at the establishment in question;
- The proposed method of selecting the employees who may be dismissed;
- The proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect;
- The proposed method of calculating the amount of any redundancy payments to be made to employees who may be dismissed;
- The number of agency workers working temporarily for and under the supervision and direction of the employer;
- The parts of the undertaking in which those agency workers are working; and
- The type of work those agency workers are carrying out.
This information must be provided to the representative in writing – an oral discussion will not suffice.
Along with this information, the consultation must take place on:
- avoiding the dismissals,
- reducing the numbers of employees to be dismissed, and
- mitigating the consequences of the dismissals.
This must be a meaningful and genuine attempt at consultation, not simply a selection of empty platitudes. Agreement between employers and the representatives must be properly sought, even if no such agreement eventually takes place. Notices of dismissal cannot be issued until the consultation has concluded. In effect, the employers are legally bound to listen to the workers during this process.
"This must be a meaningful and genuine attempt at consultation, not simply a selection of empty platitudes. In effect, the employers are legally bound to listen to the workers during this process."
Collective consultation can be a useful tool to combat employers threatening workers with dismissal unless they agree to new terms and conditions. Even if the act of dismissal is in itself an empty threat which the employer is unlikely to actually carry out, the duty to consult would still stand. If the employer fails to consult, a legal claim against them can be made by the representative.
There are certain special circumstances where the employer does not have to consult, but these are very rare. An example of one such circumstance would be a sudden disaster, which would force any business to shut down. These circumstances, however, are very difficult to establish, and any representative should always challenge an argument on these grounds.
If the employers still wish to press ahead with a termination and re-engagement this would be a serious matter and industrial action may be required to ensure a settlement is reached based on agreed terms. It is also possible to bring claims for unfair dismissal but the employers only have to show what is known as a genuine business need to defend such proceedings so unfair dismissal claims will be strongest where particular circumstances apply, such as an attempt to impose working hours which would be unlawful under the Working Time Regulations.
In these circumstances it may also be possible to claim for an unlawful inducement. This is where an employer seeks to offer an inducement to drive members onto terms and conditions which are not collectively negotiated. By definition terms and conditions which are imposed are not collectively negotiated and the inducement in this case would be the offer of re-engagement as the alternative would simply be dismissal without re-engagement. Compensation of over £4,000 per worker is payable by the employer where these claims succeed.
If you find yourself in a similar situation with your employer, Thompsons’ advice is to always seek advice from the union first.
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