Essay: Correct Dismissal Procedure For Redundancy: Risks And Recommendations.

Rule and Definition of Redundancy in the UK

Issue: What is advisable as to the correctness of dismissal procedure and connected risks of failing to follow a correct process.

Rule: Redundancy is when an employee dismisses an employee as they no longer require to accomplish their job. It may be as their business is:

• doing things in a distinct method like adopting New Technology Or Machine
• varying what it does
• closing down or changing location

According to section 139 of the act states an employee can be terminated by reason of redundancy if the termination is mainly or wholly ascribable to the fact that the necessities of that trade-

• For staffs to perform work of a specific type in the place in which the employer employed the employee; or
• For staffs to perform work of a specific type,

Have reduced or ceased or are anticipated to diminish or cease.

In the United Kingdom, the workers must involve in “collective consultation” if an employer proposes to terminate 20 or above workers, within 90 days or less.

During a collective redundancy, under the consultation provisions and standard information, employer have to:

• Notify the employee's representatives of the decision, which may result in appropriate changes in the contractual relationship or work organization, referred to in section 188 of the Trade Unions and Labor Relations Consolidation Act;
• Provide information at such time and with such material as may be appropriate to allow staff representatives to be adequately prepared for consultation and study;
• Consult with the representatives of the employee in regard to these matters

Section 188 states consultation will cover method of:

• Minimising the number of workers to be dismissed
• Avoiding the dismissals
• Extenuating the consequences of the dismissals

The employer has obligation to give collective consultation when numerous redundancies are triggered. Moreover, when a company wants to dismiss 100 or more workers as redundant, the firm has to provide consultation which start 45 days before the dismissal going into force.

In Junk V. Kuhnel [2005] IRLR 310, the court outlines that consultation has to start prior to any notice of dismissal is provided, rather than just prior to any notice ends.

However, if employees are hired under a fixed-term contract then they do not require to contain them in collective consultation, except if they are concluding their contract early due of redundancy.

Section 75C of the Employment Rights Act 1996 states the firm who is dismissing employee requiring to offer alternative employment to dismissing employees.

Selection pool

The initial step is recognising the “selection pool” of workers who at danger of being made redundant.

Selection criteria

Criteria need to be objective, fair, regularly applied criteria of job related, supported by evidence where probable, and non-bias on ground of age, religion, race etc.

Equality consideration

It is significant to be thoroughly prevent discrimination in selection criteria.

Alternatives to redundancy

Employers should try to provide alternative job, restricting or suspending recruitment, invite voluntary redundancy, pay reductions etc.

Right to appeal

Provide the redundant employee an opportunity to discuss the matter.

Unsuccessful to obey the right process of redundancy, or honestly apply it, the organisation may face possibly a discrimination claim or unfair dismissal claim.

From the given scenario, the company can lay off employees based on adoption of new technology or machine, doing different work, or working in a different way like closing or relocating. Employers first need to decide which workers should be recognized for redundancy. The selection pool process should be fair and impartial. Thereafter the selection criteria for redundant employees should be on a non-discriminatory basis. Before dismissal, redundant employees should be provided with a reasonable notice period. The company must engage in the consultation process as the firm proposes to terminate more than 20 employees within 90 days or less. In the consultation process, the organization should include a method of dropping the number of staffs to be fired, avoiding dismissal, and minimizing the significances of dismissal. In addition, they are also required to provide employee representatives with information about possible changes in work organization and consult with employee representatives regarding redundancies due to homework success.

Collective Consultation During Redundancy

In addition, the Company must initiate consultations prior to providing any notice of dismissal immediately prior to the expiration of any notice. In addition, the company must identify employees who have fixed-term contracts that will not be involved in the consulting process. However, the Company must initiate consultations prior to providing any notice of dismissal immediately prior to the expiration of any notice. In addition, the company must identify employees who have fixed-term contracts that will not be involved in the consulting process. Apart from this, the right to appeal also has an option for the redundant employee to appeal the matter before the employer. If the company fails to follow this process, there will be a chance that the employee will file a claim against the company on grounds of discrimination or unfair dismissal.

Conclusion

It can be concluded that the company should first identify which employees should be redundant and the selection criteria of redundant employees should be done without any discrimination. In addition, the consultation process should be used to consult the employee representative regarding the matter. A notice period should also be provided before the dismissal. In addition, the company must identify and offer alternative jobs before sacking employees. They should try to provide alternative jobs, restrict or suspend recruitment, invite voluntary redundancies, pay cuts, etc. If the company does not follow this process, they could face a discrimination claim or an unfair dismissal claim.

Issue: whether Karolina bring a successful legal challenge against her dismissal?

Rule: Gross conduct is not defined in the Employment Rights Act 1996.

Section 86 of the Employment Right Act 1996 states that every employee should receive notice of minimum 1 week prior being terminated if they have worked for above 1 month. Moreover, after two years, the minimum week of notice period is 2 weeks.

According to the Employment Rights Act 1996 of section 94 states that an employee should not be dishonestly terminated by their employer. Section 98(4) states that whether a termination is unfair or fair relies on whether the firm performed unreasonably or reasonably in deciding to terminate the worker for that reason. Moreover section 98(1) outlines an employer must develop a probably reasonable reason for termination.

Section 3 of the Employment Rights Act 1996 specifies any procedure appropriate to the taking of “disciplinary decisions” referring to the sections of a document underlying such a process which is rationally accessible or to a decision to terminate the employee.

In Gunton V. Richmond upon Thames [1980] ICR 755, the court held that if an employer unsuccessful to obey a procedure of contractual disciplinary prior terminating a worker, the measure of damages of the employee for wrongful termination contained the salary the worker would have received while the disciplinary procedure was followed by the employer.

In Edward V. Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, the court held that if an employer conducts the disciplinary proceedings before dismissal of employee, the applicant may not be terminated.

In Johnson V. Unisys Lt [2001] UKHL 13, the court only require to recognise violent of express terms of contractual. Those were:

• Breach of the disciplinary procedure
• Breach of the provision regarding the notice period.

Selection Process for Redundancy

In West Midlands Co-operative Society Ltd V. Tipton [1986] IRLR 112, the court held that it is significant to check did the employer act unreasonably or reasonably in treating the actual reason as an adequate reason for terminating the employee.

In Dietman V. London Borough of Brent [1988] IRLR 299, the court held that the elements of gross misconduct are intention, disruptiveness or dishonesty. Gross misconduct refers to sever behaviour or action on the part of an employee.

In Estland Homes Partnership Limited V. Cunningham UKEAT/0272/13, the court held that an employer could not depend on a behaviour being demonstrated as “gross misconduct” in their procedures to undertake that it could validate summary dismissal. It is also necessary to understand whether the behaviour or conduct is capable of amounting to “gross conduct” under the situations.

In Beardwood Humanities College V. Ham [2017] EWCA Civ 1629, the court found that matters when a worker is suspect of more than single wrongdoing, the right method is not whether the conducts of delinquency or misconduct exclusively or indeed additive consist of gross misconduct but instead whether the act in its entirety consists to an adequate reason for dismissal.

In Denco Ltd V. Joinson [1991] 1 NLR 330, the court held that it is significant that management should make it clear to its staff how the work should be done and what must not be accepted.)

Application: Karolina entered into a contract stating that she could be dismissed with 6 months’ notice. The contract also specifies a disciplinary procedure. The Managing Director wants to dismiss her without any notice as he feels that she is spending company money for the entertainment of her friend and not for legitimate business purposes. Karolina must have received a notice period prior to the dismissal because her contract states that she can be terminated with a notice period of six months. However, the company also has the right to dismiss her without any notice period if they believe she is committing gross misconduct. The Managing Director must determine whether every element of gross misconduct is being met by Karolina. They should consider whether the behavior or conduct is capable of "gross conduct" in the circumstances.

In addition, prior to dismissal, the Managing Director is required to see whether there are elements of intent, publicity or dishonesty by Karolina, to make gross misconduct. However, it can be said that spending money to entertain her friends can be considered a deliberate and disruptive trait. Apart from this, her contract stipulates a disciplinary process that means she must have had the opportunity to discuss the situation, a verbal or written warning, or a statement in writing about what Karolina did wrong.[20] In addition, she can claim against the company that the company did not follow disciplinary process prior to sacking her because the contract clearly stipulates the disciplinary process prior to dismissal. Furthermore, if the company follows the disciplinary process, it is likely that she will not be fired. The contract clearly states the disciplinary procedure and the notice period before dismissal. However, the Managing Director does not comply with both the clauses of the contract.

Consultation Prior to Dismissal and Right to Appeal

Conclusion

It can be concluded that Karolina can succeed the legal challenge against her dismissal as the managing director wants to sack her without notice, even though the contract clearly states that she may get a notice period of six months. In addition, it also prescribes the disciplinary process but has not received any warning, discussion before the dismissal. However, her contract mentions "May" indicating that it is not mandatory for the firm to provide notice period before sacking her.

Issue: Whether Amandeep has grounds for bringing successful claim against the corporation?

Rule:

According to the Employment Rights Act 1996 of section 96, employers have to state that they have a probably fair reason for termination. The likely fair reasons are illegality, capability, misconduct, or redundancy.

Section 94 of the act outlines an employer has duty not to be unfairly terminated his employee.

Section 95 of the act mentions that an employee can be terminated without notice on the ground of conduct.

The Equality Act 2010 states if the reason for the dismissal engage “discrimination” against the worker (due to disability, age, race, or sex), worker could make a claim of discrimination regardless of their length of service.

In Dr Annette Plaut V. Exeter University1400362/2020, the court said that a fair procedure ought to be followed before dismissing the company. If the company does not follow due process in dismissal, then unfair dismissal claim can be filed against the company.

In Polkey V. A E Dayon Services Ltd [1987] UKHL 8, the court held that an employer has to continue ensure or check his/her procedure for dismissing workers is fair.

In Tower Hamlets Health Authority V. Anthony [1989] ICR 656, the court held that a classic mistake is not providing the employee warning.

In Mr R Hastings V. Kings Colleage Hospital NHS Foundation Trust 2300394/2016, the court states that even if an employer has an investigation or disciplinary procedure, the manner where it is adopted have to be unbiassed for a termination to be fair.

In Hussain V. Elonex plc [1999] IRLR 420, it was held that an employer does not entitle an employee to know everything considering that he/she knows the accusation.

In Whitbread plc V. Hall [2001] IRLR 275, a confession may still leave a termination prejudicial if the process of disciplinary was faulty, the employer has to always obey an impartial or fair procedure prior to dismissal for misconduct.

From the given scenario, Marcus and Amandeep had a heated argument over football which ended with some pushing and shoving. A disciplinary hearing was held in which Amandeep was discharged with immediate effect on the ground of gross misconduct after review of the disciplinary record. After his dismissal, the company learned that Amandeep had posted several derogatory comments about the company. The dismissal must be fair and impartial. Both the employers Amandeep and Marcus were involved in a heated argument but only Amandeep was sacked by the company and Marcus was given only a final warning. This states that Amandeep can make a claim of dismissal on grounds of unfair and wrongful.However, the company said they dismissed him after reviewing the disciplinary record.

Legal Consequences of Failure to Follow Correct Dismissal Procedure

Also, the incident of derogatory post came to light after the dismissal. This shows that the Company was not aware that Amandeep had made derogatory remarks regarding the Company while serving the Company. Amandeep can say that if the company didn't know about the Facebook comment, on what basis in the review process they dismissed him and not Marcus. However, the company can sack him if they know they made derogatory remarks about the company during the disciplinary hearing. The company must follow a fair or reasonable process prior to dismissal for misconduct. Amandeep would have given the same warning as Marcus or he could be sacked with immediate effect if the company becomes aware of the derogatory remarks. The company's disciplinary process must be fair and free from discrimination.

Conclusion

It can be concluded that Amandeep has grounds to bring a successful claim against the Company on the ground of unfair and wrongful dismissal. The two had a heated argument over football but only Amandeep was dismissed and Marcus was given only a final warning. objectionable remarks received after dismissal. This shows that the company was not aware of the incident during the disciplinary process, hence on what grounds they dismissed Amandeep for misconduct. This clearly shows that he dismissed Amandeep in a discriminatory manner. However, if the company came to know about the derogatory comments during the disciplinary hearing, they could sack him with immediate effect.

ACAS, 'Redundancy' (acas.org, 2022) <https://www.acas.org.uk/redundancy> accessed 25 April 2022

nidirect Government Services, 'Collective Redundancies' (nidirect, 2022) <https://www.nidirect.gov.uk/articles/collective-redundancies> accessed 25 April 2022

UK Government, 'Redundancy: Your Rights' (GOV.UK, 2022) <https://www.gov.uk/redundancy-your-rights/consultation> accessed 25 April 2022

Journals & Books

Butler M, 'A ‘Pick And Mix’ Approach To Collective Redundancy: USDAW' (2018) 47 Industrial Law Journal

Carby-Hall J, 'Ethical Veganism Is Deemed A « Protected Characteristic » In British Discrimination Law' [2020] Revue de droit comparé du travail et de la sécurité sociale

Collier R, Dubal V, and Carter C, 'Disrupting Regulation, Regulating Disruption: The Politics Of Uber In The United States' (2018) 16 Perspectives on Politics

Devlin A and others, 'Delivering Digital Health And Well-Being At Scale: Lessons Learned During The Implementation Of The Dallas Program In The United Kingdom' (2015) 23 Journal of the American Medical Informatics Association

Gant J, 'Studies In Convergence? Post-Crisis Effects On Corporate Rescue And The Influence Of Social Policy: The EU And The USA' (2015) 25 International Insolvency Review

Lorber P, 'Economic Dismissals In The United Kingdom: The Judiciary And Its Search For Compliance With EU Law' [2017] Revue de droit comparé du travail et de la sécurité sociale

McLachlan C, MacKenzie R, and Greenwood I, 'Victims, Survivors And The Emergence Of ‘Endurers’ As A Reflection Of Shifting Goals In The Management Of Redeployment' (2020) 31 Human Resource Management Journal

McLachlan C, MacKenzie R, and Greenwood I, 'Victims, Survivors And The Emergence Of ‘Endurers’ As A Reflection Of Shifting Goals In The Management Of Redeployment' (2020) 31 Human Resource Management Journal

O’Rourke A and others, 'Old Wine In New Bottles? Regulating Employee Social Media Use Through Termination Of Employment Law: A Comparative Analysis' (2018) 47 Common Law World Review

Roberts P, 'The Equalisation Of The State Pension Age In United Kingdom: Indirect Sex Discrimination?' (2021) 21 International Journal of Discrimination and the Law

Legislations

The Employment Rights Act 1996

The Equality Act 2010

Cases

Beardwood Humanities College V. Ham [2017] EWCA Civ 1629

Denco Ltd V. Joinson [1991] 1 NLR 330

Dietman V. London Borough of Brent [1988] IRLR 299

Dr Annette Plaut V. Exeter University1400362/2020

Edward V. Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58

Estland Homes Partnership Limited V. Cunningham UKEAT/0272/13

Gunton V. Richmond upon Thames [1980] ICR 755

Hussain V. Elonex plc [1999] IRLR 420

Junk V. Kuhnel [2005] IRLR 310

Junk V. Kuhnel [2005] IRLR 310

Mr R Hastings V. Kings Colleage Hospital NHS Foundation Trust 2300394/2016

Polkey V. A E Dayon Services Ltd [1987] UKHL 8

The Trade Unions and Labor Relations Consolidation Act

The Trade Unions and Labor Relations Consolidation Act

The USDAW V. Ethel Austin [UKEAT/0547/12/KN

The USDAW V. Ethel Austin [UKEAT/0547/12/KN

Tower Hamlets Health Authority V. Anthony [1989] ICR 656

West Midlands Co-operative Society Ltd V. Tipton [1986] IRLR 112

Whitbread plc V. Hall [2001] IRLR 275