East London Solicitors

EMPLOYER LEGAL ADVICE

In legal terms when are staff redundant ?

The classic but narrow legal definition of redundancy is that there is a redundancy situation when :-

• the job which an employee does no longer exists ; or
• the place where the employee undertook his or her work has closed or moved

We are relocating our business – are staff redundant ?

The answer depends on what your employment contracts state by way of a mobility clause and the distance between the old place of work and the new. Crucially, you should not assume redundancy without consulting with the employee, which is a vital part of the redundancy process. If the employee is prepared to relocate, then there isn’t a redundancy situation on the face of it.

Closure of business

This is relatively straightforward if the entire business is being shut down completely although a very unfortunate state of affairs for all concerned. Be wary of confusing closing a business with selling part or all of it, in which case the Transfer of Undertakings (TUPE) Regulations may well apply and this is not a redundancy situation.

Reduction in available work

These situations are inherently complicated, especially if a number of staff carry out similar roles or where roles are not so specialised that there are only a select group of individuals with the appropriate skills, qualifications or experience to undertake a particular surviving role post redundancy. Objectivity and ongoing consultation, together with transparency and establishment of fair criteria are highly important if claims for unfair selection for redundancy are to be avoided or risk reduced.. It is not open to an Employment tribunal, in dealing with a claim for unfair dismissal by way of redundancy, to “second guess” an employer’s actions and decisions.

When a redundancy situation arises, the following steps should be followed.

• Provide employees with advance warning of the possible redundancy situation in writing in the form of an ‘at risk’ letter. Ensure that employees who are absent, including any on maternity, ill health or due to disability are included.
• In situations where there is less work available, carefully select the potential pool of employees from which those to be made redundant will be chosen.
• Consult fully and openly with employees at all stages.
• Decide carefully on objective criteria to select staff for redundancy, not just “last in first out”.
• Document the whole process vigorously.
• Give employees sufficient  time to consider proposals and respond and be prepared to listen to their suggestions.
• Make genuine efforts to look for suitable alternative employment within any associated company or subsidiary.
• Before any dismissal it is important send a written statement to the employee setting out the reasons for selection for redundancy. The employee must be invited to attend a meeting with the employer, where they are entitled to be accompanied by a chosen representative. This is usually a work colleague or trade union representative.
• After the meeting inform employees of the decision and notify them of their right to appeal the decision.

What should a disciplinary and dismissal contain ?

The first point to make is, when you have policy in place, follow it. This is vital.

Even if you act within the “range of reasonable responses” test in relation to any given situation and dismiss for a fair reason, you can lose an employment tribunal case simply on the basis of procedural unfairness.

A fair procedure should, as a minimum, incorporate :-

• a reasonable investigation before coming to a decision
• a disciplinary hearing allowing the employee an opportunity to state their case
• notifying the employee about the hearing and the reasons for it in writing
• allowing the employee to bring a colleague or Trade Union representative to the hearing
• consideration of the full range of  forms of discipline
• notifying the employee in writing of the decision reached after discipilinary process with reasons
• The employee should be notified of the right to appeal against the decision.

What are the options if a member of  staff has lied on their cv ?

There are 3 possibilities in this situation :-

Action for breach of contract

You are unlikely to have a clause in the employment contract about an employee lying, although this might be advisable. In the absence of a clear contract clause this comes down to the duty of trust and confidence which is implied into every employment contract. What then needs to be considered in each case is whether you wish to dismiss the employee and this in turn relies on an assessment of whether the employee’s breach of contract is a “fundamental” breach, since only a fundamental breach allows immediate termination. Each situation would need to be considered on it’s own merits depending upon the extent of the lie, type and seniority of job and such like, so legal advice should be taken.

Action for Misrepresentation

Misrepresentation is a factual statement by one party, which proves not to be correct, and which induces the other party who relies upon it. The remedy for misrepresentation is generally damages, and whilst it is quite unusual for an employer to sue an employee for money, nevertheless such a claim may well be legally justified and losses might be recruitment  costs incurred or money spent on training the employee..

Criminal/civil action for theft

False statements on a cv could in theory amount to theft as being akin to stealing from the employer. The possibility of involving the police could be part of negotiations with the employee to terminate employment without dispute, but care needs to be taken to avoid  any counter allegations of inappropriate action by the employer in threatening such action.

We hope you have found this page useful, please do visit the main employer law page for East London and/or the employment law blog.