Seamus: Well, nobody went for the 10 days, so we've 0% on it. And yeah, I mean, I suppose, look, the answer shows it depends on the number of redundancies and maybe just to mention that at this stage, I know we're going to talk about consultation periods and things like that. But just always remember when you're going through the redundancy process that if you're making 20 or more employees redundant, that the intention or the proposal is that it's going to be 20 or more, you must notify then measure and measures at the government organisation, it's the Northern Ireland Statistics and Research Agency, and you must notify them.
The general rule is that the employer must notify of any proposals at all to make more than 20 people redundant at one establishment, and the establishment is generally case law says it's the site where the employee is assigned to work. And so if you've between 20 and 90 redundancies, if the proposal is to make between 20 and 99, sorry, 20 and 99 redundancies, you must notify at least 30 days before the first dismissal, or if it's more than 100 redundancies, you must notify 90 days before the first dismissal. And the date of the notification will actually be the date that NISRA receives your notification, and you submit the notification by way of the HR1 form.
And so it's not an overly complex situation. I did one just fairly recently back in October time when we were going through a redundancy process and notification through to NISRA. The reason why we do that and the basics for that are that it's a process of notifying NISRA that there's potential of redundancies. And then it also means that government can prepare and the various government agencies can prepare for the potential redundancies so they can do things like notifying local DSS offices that there might be a number of applications that are coming through the local job centres. They might notify local advisory agencies that are within the area of where the redundancy are being made.
So for instance, just say that if the redundancies are in the Ballymena area, they might contact the local agencies there to say look, you might get a number of calls, we're just giving you a heads up that this going to happen. And it also means that the job centres will know that there's going to be availability, they can advise potential employers of that also actually trying to assist and help. So that's the reason for the notification.
But what I would say is, always bear that in mind, you must . . . it's a legal obligation for you to provide that obligation. And you should also remember that if you're going through your collective process, that you're notifying the representatives and also the representative should also receive a copy of the HR1 form that you submit to NISRA as well as their information. And you do send out a lot of information in the HR1 form. It's not a complex form, but you're giving information in relation to the numbers, the place of the of the redundancy, and the reasons for the redundancies, and things like that.
There is the aspect that if you fail to do it, that you could be subject to, you know, penalty, or fine, and there is a defence where if it wasn't reasonably practicable for you to comply with the minimum notification periods and but you must make every effort that you can in order to do that. If you don't do it, you must be able to give reasons and explain as to why you haven't been able to do it.
So bearing in mind recent events with P&O and the concern that that has raised for everyone that works within HR and employment lawyers. You know, I think roughly it was around maybe 80 or 90 people were affected in Northern Ireland. I think it was a total of maybe 100 all in, but, you know, simply to be told, you know, leave, you're being made redundant and comments such as that are obviously very concerning. But there would be that obligation that if you are notifying and the circumstances are over 20. And if you think about P&O and the numbers they had, and even if it was within the smaller number within Northern Ireland, they still have a duty to notify NISRA and just wanted to flag and point that out.
Rolanda: Yeah, so that's the notification, which is obviously separate process from the consultation, which is another thing that people didn't do. So, you know, I suppose, you know, can you talk around, you know, the consultation, the collective consultation, what's involved in that and what P&O should have done perhaps?
Seamus: Yeah, well, I mean, the general position then is the way that I would term it is that if you're making less than 20 people at your establishment redundant, you're probably looking at what are called an individual consultation, individual redundancy. Where it's more than 20 at that one establishment within a 90-day period, then that is known as collective redundancy. And really good and best guidance, I'm not sure if we've got it up or available, maybe we can look at that afterwards. The Labour Relations Agency do have a guidance in relation to redundancy itself, fairly recently updated also. And look, you'll find most of the information in and around that, again, it's a bulky enough document but it's really user friendly and easy to read.
But generally, where collective redundancy will come into effect sort of three ways. One, if the business is closing or it's downsizing and in terms of closing an element of the business down and the employer doesn't need as many employees any longer, or if there's a reorganisation or reallocation of work, or there's actually a communication of the work itself. That tends to be where you get larger numbers which will trigger the point of collective consultation.
And the general rule of thumb is always that employers should always consult with an employee before making any employee redundant and the purpose of the consultation is to provide the employee with an opportunity and a way to look after and influence that redundancy process. And as well as the other important aspect is that if the employer doesn't consult and that there is a penalty in relation to that. There's an award for a failure to inform and consult under the legislation and you're looking at essentially a penalty, a protective award as it's known. I'm sure you would have come across that plenty of times within your previous role at the LRA, that you're looking at a 90-day period, or 90-day penalty in relation to that 90 days gross salary.
But you can see if you think about it logically you can understand the necessity of the reason for consultation on why it is so important to consult. The type of information that you're looking to get across initially and certainly what the legal obligation is, is that you have to disclose certain types of information. There's a specific timeframe for doing that also, and that and, you know, from whenever that the sort of timeframe starts whenever you have a proposal that you're going to make those redundancies, you need to start that consultation process at that point.
And what's important as well is that your organisation may be unionised. You may have one trade union. You may have a number of trade unions involved in your organisation. And you may not have any trade union whatsoever. And that can be real difficult process wherever you don't have a trade union involved because you're still obliged to go through collective consultation. And that is tricky for employers, particularly small to medium sized employers that maybe, you know, where there's no trade union involved, but they're over that 20, potential of 20 redundancy threshold and they have to engage in collective consultation and then they have to provide, I suppose, guidance to the employees about looking at electing representatives and things like that.
But trigger is once you know that that the proposal is there, you are obliged then to commence with the consultation process. Ideally at the very start of this, you're getting commentary from the union or from the elected representatives, or if it's an individual process whereby you're feeding in as to what the process is going to be. So the type of information that you're looking to provide is, you know, the total number and the description of the proposed redundancy. So how many people are going to be affected and what type of employees are going to be in fact affected? Is it just employees in one department? Is it all admin staff? Is it all factory workers that work on a particular production? Those that sort of information needs to be provided.
You need to also give details around the proposed selection method. What is the selection method going to be? And that's the real interesting aspect. If you get into litigation, a lot of the time the selection is the issue. But whether the selection is going to be based on an agreed policy and procedure that was already contained in the handbook, whether you're going to negotiate the procedure through the consultation process, or that what are the factors that you're going to use to maybe score? Are you going to interview those sorts of things and the like.
And the proposed procedure and the time limits for carrying out the redundancies really important they see that you are fair with employees and you give them a timetable. You give them a timeframe and let them know. So your guiding point will be what are my obligations here on consultation, and it's very similar, and in fact, it's the same if we go back to the NISRA position. If you are looking at the 20 to 90 day . . . 20 to 99 employees, it's at least a 30-day consultation period and if you're more than that one, if it's 100 or more, then you're in for that 90 days. And don't get confused because the position is different than England. And if it's more than 100, it's only 45 days in England, and you will get employers or you'll get clients that will contact you and say and no, I checked out on ACAS and he said well no, need to look at the Labour Relations dates to remember that you have to look at the jurisdiction here in Northern Ireland, specifically because there are subtle differences but important differences as well.
But you can see that there then it's also looking at the ways to avoid redundancies. Are you putting it out to say if anybody wants part time, voluntary redundancies, if anybody wants to look at a reduction in their working hours or the way that they work, and then also being really clear about what the reason is for the redundancies and that goes that if the redundancy happen to be genuine redundancies? So what is the reason? Is the reason because we have lost our contract and we no longer supply the work under that contract? So we're going to have a reduction in work. Is it because we're reorganising? We can do things more efficiently. We've brought a new computer system in and we don't need as many employees now? All those sorts of things need to be communicated because that assists the representatives to be able to give feedback and suggestions in terms of how they could possibly look at saving jobs or alternatives to redundancies and things like that.
And then when you get into the actual consultation process and the thick of it, you're looking at avoiding redundancies and at reducing the numbers at risk and mitigating the effects of dismissal on effective employees as well. And thing that we point out is to say that, you know, just be aware that the duty to collectively consult, again, it starts when the proposals are in place and there's clear case law on that. It's not always clear whenever you look at it, and if you get into a difficult sort of litigious case about that, the courts they'll go through, they'll want to see when the proposals were made, the meetings and the minutes of the meetings, the notes in and around the whole process. And it would be interesting to see thinking about P&O, you know, did somebody just decided in a board meeting we're going to axe 800 employees and that's it? You might have saw some of that stuff that they were talking about in Parliament as well. And I think the chief executive of P&O had to attend committee at Parliament and explain that position. You could see the real anger and annoyance that the people had in relation to it.
But generally, you know, the reason for the consultation is to really look to provide, be fair and provide information and give a fair opportunity for people to comment on that. And then moving through that process about looking to avoid redundancies, reemployment and all those sorts of aspects. And legally, the position is if you fail to consult, the likelihood is that it will be a penalty kick in relation to an unfair dismissal claim. Now you can obviously make arguments in relation to that. And I see that one of P&O's arguments were that if we didn't take these steps, the business was going to collapse. That was their . . . They were saying if we did not do that, the business was dead and this was an attempt to save the business. Other things as well in redundancy cases when you get to tribunal, if the decision . . . even if you mess up the process, you know, it may be that you're saying well, look, it was going to happen in any event. So even if we handled and followed the process completely end to end and dotted our I's and cross our T's, the person still would have been made redundant. That can be considered by a tribunal. But where there's a failure to consult, there's an automatic right for the protective award. Which if you're talking about looking at over 800 employees, it could be a significant sum of money on top of unfair dismissal claims.
Rolanda: Yeah, and the redundancy money as well. So if you just joined us, you're joining Seamus and Rolanda Employment Law at 11. We're just been discussed and redundancy consultation notification. If you have any questions, don't forget to drop them into the question box there. And we just have a wee question just on redundancy. I love this question because it's one of those ones, sorry, Seamus. It's really hard to answer, So, you know, I suppose when is the ending of a fixed-term contract, you know, that lasts two years, when would that person be entitled to a redundancy if it's ending because fundings ran out? Or you know, it's not redundancy, the employers is saying it's some other substantial reason. When is somebody entitled to redundancy pay in the termination of a fixed- term contract?
Seamus: Well, the general rule is after two years you have a statutory entitlement to redundancy. What a point that is, want to talk about protective award, that 90-day sum, that's a gross sum in relation to the 90 days, Rolanda. I just wanted to mention also, that you don't have to have your 52-week statutory period of continuous employment to obtain that protective award. It kicks in earlier than that, and a lot of people will say, "Well, look, I don't have an entitlement to redundancy itself. But I do have my right my protective award."
My understanding in relation to that the ending of a fixed-term contract is that if the person reaches that two-year entitlement, the redundancy process kicks in on that. I stand to be corrected in that. I probably need to go back and have another look at it. But logically, the position would be that you know that if it's fixed term and it's temporary and after four years it becomes automatic, then unless there's a good reason or a reasonable reason not to provide the permanency for the role. Whenever you're coming to end a fixed term contract, if you're over the 52 weeks threshold, you should be going through the proper procedures in any event, through the disciplinary and dismissal procedure.
And redundancy is an interesting one when you think about it because if the term of the contract was only ever to be for the two years, and then or if it was a year and then extended by another year, and you know, provided you can justify that the reason for the termination of the contract at that point. But I'm nearly sure, don't quote me on that. I will have a look and we can get clarification on that after this. But once the two-year period has hit the entitlement for redundancy.
Rolanda: Yeah, I mean, I suppose it's fair. This is the reason why the employment is ending, you know, if somebody is I suppose they're in a fixed-term contract to cover somebody and that person returns to work, then that probably doesn't meet the definition of redundancy because the job is still there.
Seamus: It's still there. Yeah.
Rolanda: Yeah, but if it's funding and the funding ends, you know that job ends, so it is one that's probably worth just looking a wee bit more into. If you have any specific queries in relation to the person that has emailed that in, you know, follow up with us on that.
You talked a wee bit, Seamus, about, you know, the procedure in when it comes to making people redundant. So you've got your consultation period, and I think I'm right in saying that when it is a collective redundancy like that the statutory three-step procedure doesn't apply. But, you know, should an employer perhaps offer an employee right of appeal in a . . . because it's a termination of employment, essentially?
Seamus: Yeah. Well, I certainly think that if the employee lodges an appeal, that the employer should be deal with the appeal. I don't think that they should be saying, well, no, it was a collective redundancy process. So just to talk about that a bit. And where you have a collective redundancy process, there are some of the statutory procedures that don't apply as they normally would. And it's quite difficult to get clarity in and around all of that. You do need to look closely at the legislation, Labour Relations Agency's code of practice does say that there are circumstances where the statutory dismissal procedure doesn't apply. And it then refers you on to the statutory or sorry, to the code of practice in relation to disciplinary and grievance. And then it does refer to Article 216 of the Employment Rights Order 1996, the Northern Ireland order, and it does say in circumstances where the dismissal is one of a group of redundancies covered by the employer's duty of collective consultation with appropriate representatives.
I think there's a number of factors that are involved. I think that you would need to look at the size of the organisation and be careful about those that didn't engage in the collective process and so, you know, you can still consult individually through that process as well. And also, I think if individuals do request an appeal, you should deal with the appeal.
As regard offering a right of appeal, again, I think it does come down to resources that are available. And I think best practices if you're trying to be a fair and reasonable employer, I think it's reasonable to offer an appeal if you're dealing with a set limited number of people. But in circumstances where there is a large-scale redundancy where there has been trade unions involved, you'd be much more comfortable with them know the collective process, knocks that out and you don't need to deal with the appeal.
Rolanda: And I guess if you're, I mean, closing a business]. know there's probably little point in appealing here because there's no alternative.
Seamus: I was just going to say, Rolanda, where you . . . the person does submit an appeal and you give it consideration before you reply back to the person if you think that there's difficulties for the organisation, proceed with the appeal because likely it is the employee is going to the tribunal anyway. And, you know, make a claim, and so it might be the best thing to review it. But the hesitancy can calm that, there can be a feeling that if you made a mistake on one or there's an error along the way, that might impact a lot of other people.
Rolanda: Okay. Just we're going to move on from this area, but there is a question there and it's probably just for us to clarify on that. So in a collective redundancy, should an employer also carry out individual consultation?
Seamus: In the collective redundancy, you can do it. The collective redundancy should cover everything off in relation to that process, but you can also look to . . . or look to consult individually with all of the employees directly and offering them, you know, individual consultation meetings and things like that. I did read through some of the some of the documentation. There's certainly encouragement to consult individually as well. And certainly, think where your approach on an individual basis, you should be dealing with that person.
Rolanda: But there's no legal obligation, I suppose, just to clarify that to do both?
Seamus: No, I think where you're in a collective process, and I think dealt with that way deal with it through the collective process.
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