
Join Christine Quinn, Knowledge Partner, |Legal Island and Seamus McGranaghan, Partner, O'Reilly Stewart Solicitors, as they discuss:
- Bullying and harassment - tackling bullying and harassment in the workplace is both a legal and moral obligation for HR. The recent scandal surrounding young McDonalds employees and the issues in BBC NI surrounding the alleged circulation of questionable video content by a senior figure have really brought this subject to the fore. So how do you deal with this thorny issue?
- Redundancy – concerns around redundancies here in NI in big names such as Norbrook, Ulster Bank and BT, and the collapse of household name Wilko in England have highlighted this uncomfortable reality for HR. Conducting the process well and legally can make all the difference for everyone concerned. Seamus offers his tops tips and advice, including the advantages of a well-drafted Compromise Agreement.
Watch individually or get your HR team around the computer and use the webinars as monthly group learning opportunities.
Recording
Transcript
Christine: Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn, and I am one of the Knowledge Partners here at Legal-Island. For those of you who don't know me, I'm a qualified employment law solicitor. I'm not practising at the moment, working for the lovely Legal-Island. Most of my practicing career I spent in London, but I've also practised here in Belfast.
I'm joined, as usual, by Seamus McGranaghan, Director and Employment Law Expert at O'Reilly Stewart Solicitors.
So, what are we talking about today? We're talking about two things. Firstly, bullying and harassment. So, tackling bullying and harassment in the workplace is a legal and moral obligation for HR.
The recent scandal surrounding young McDonald's employees and the issues in BBC Northern Ireland surrounding the alleged circulation of questionable video content by a senior figure there have really brought this subject to the fore. So, how do you deal with this issue? Seamus is going to tell you.
Secondly, redundancies, concerns about redundancies in big names in Northern Ireland. We've got Norbrook, Ulster Bank, and BT all announcing redundancies, and of course, over in England, the collapse of the big household name Wilko.
And so, this really is an uncomfortable reality for HR at the moment. But the good news is if you do the process well and legally, it can make all the difference for everyone concerned. So, Seamus will be offering his top tips and advice on that.
So, thanks as always to our sponsors MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.
So, as always, we're going to kick off with some poll questions for you guys. So, if you can get your voting fingers ready and Maria is just about to put up the first question.
So, are you thinking about or currently doing a restructure? If you could click yes or no. It's totally confidential. Nobody else will see what you're clicking, so please, do get involved.
Let's see. So, yes is 34% and no is 66%. I think, Seamus, that is fitting in with what we were discussing before we came on there. It does seem to be about quite a lot in Northern Ireland at the moment, unfortunately.
Seamus: Yeah, I think that's right. I mean, certainly from what I'm seeing coming across my desk, and certainly over the summer months as well, there have been a number of redundancy processes and a number of employees looking for advices in relation to redundancy or/and compromise agreements or/and settlement agreements.
I mean, you're basically looking there at a third, two-thirds split. And it's one of these interesting things that . . . A lot of businesses are constantly looking at their structure. They're looking at their management teams. And often, you do get changes that happen within the structural process. That might mean that there is change of job titles, people move around.
It doesn't always necessarily mean that there's going to be any kind of redundancy process, but often then maybe looking at efficiencies within the business or looking at how things could be better done and completed. The process can roll out then after that. There may be a restructure that will result in some potential redundancies.
We are going through a difficult time at the minute economy-wise. We have high interest rates, we have cost of living, and businesses are feeling the pinch, no doubt, coming out of COVID. A lot of the supports that we had during COVID are all over, and some businesses just haven't been able to proceed in the same way that they had pre-COVID.
Some have really rose to the challenge, some have gained business out of it, and others, it's had a really detrimental impact. So, it doesn't surprise me that we're sitting with those sorts of figures.
Normally, I think when economy is good and business is good, you would see that sort of less, down maybe into the single percentages of maybe 5%, maybe even up to 10%. But 34% is a significant enough number, isn't it?
Christine: It is indeed, yeah. Thanks for that, Seamus.
Maria, can we just see the second poll there when you're ready, please? So, does your organisation equip managers with the skills needed to appropriately respond to serious incidents? So, this is really to do with the bullying and harassment aspect that we're talking about today.
If you could select one. "No. We deal with these incidents ad hoc", "No. But it is in the handbook", "Yes. But it's in the handbook", or, "Yes. As well as policies, we train them regularly on how to . . ." and it tails off there on how to use the policies. So, if you can click one of those and let us know what you think, that would be great.
Okay. So, a resounding 43% have ticked the box we were hoping them to, Seamus.
Seamus: Great.
Christine: So, 43% train people. They have been listening.
I suppose let's move on to the next poll there. Great. So, this really is a little bit of market research for us. We want to know what you want us to talk about in the coming months. So you can tick all that apply.
So, we've got grievances, tricky dismissals, investigations, family-friendly rights, or something else. These are the big issues you're dealing with at the moment.
And if you are ticking "something else", let us know. Drop it into the questions box what that something else is.
Again, I would stress this is all completely confidential, so don't feel that anyone else will see your answers other than myself and Seamus there.
Wow. Grievances, tricky dismissals, and investigations are all right up there. Seamus, is that what's coming across your desk at the moment?
Seamus: Yeah, certainly. I mean, there are always grievances. It's always a topical issue. It's always one that comes across the desk. And tricky dismissals, I think that there have been difficulties, again, just arising from these difficult circumstances that we've had over the past couple of years.
Changes in attitudes of employees. I think just at the minute as we're starting really to embed back into . . . I put it in the terms of our normal routines and recovery from all of the issues that have arisen. I can see that there's some friction starting to develop between employers and employees.
Employers are getting more demanding, and employees are getting less willing to meet those demands at times, if that's the best way to put it.
And we have talked about things like quietly quitting and all those things before. I think just at the minute, there's a slight turn in the tables happening with regards to employers, particularly around a lot of the requests that have been facilitated with working and maybe even the situations that haven't been as well defined as a flexible working application.
Even media-wise, you can see there's a lot of discussion on media at the minute about the requests and demands of employers. It very much would have been the normal expectations for employers, and you can see the employers starting to push back on that.
It is bringing around difficult issues between employers and employees, and that's where you're getting, I think, grievances that are arising and then also the situation with tricky dismissals coming up.
It's an interesting point as well. I mean, not all grievances are just about two employees not getting along. If you look at the LRA code of practice on disciplinary grievance, you get a really great list about different types of grievances and what are considered formal grievances and informal grievances and things like that. But all of those sorts of day-to-day issues that arise are no doubt hitting with difficult and challenging patterns for HR advisers at the minute.
Christine: Yeah. And just of interest, a few of the comments that are coming in, what else people are dealing with. We've got redundancies. We've got issues with unions. We've got recruitment and retention, and high levels of absence mainly due to mental health issues.
So, I think that there just seems to be . . . it is a very strange time for employment law, I think. You've got recruitment issues butting up against people being made redundant largely. You've got employees maybe having what we'd see as more freedom than they used to have, but then that's coming up against mental health issues possibly due to isolation and maybe us not being in the office. So, it's very contradictory times, isn't it, really?
Seamus: Yeah, absolutely. And it takes me back to one of the . . . It might have been last year or the year before that, just for the Annual Review, I had done some research in and around absence figures. There's a public sector document that is issued every year showing absences and the reasons for absences, and it was no doubt that the single biggest factor in public sector for absences was mental health issues that were arising. And it was forecasted that those were going to increase.
They're very difficult matters, as you know, to deal with, particularly whenever you're trying to manage and assist somebody in returning back to work, and you're using your welfare meetings, your contact meetings, and your Occupational Health. But it is very tricky, and I think that's where we're at. We're seeing a lot of that happening at the minute.
Christine: Brilliant. Thanks very much, Seamus.
So, if we get started then, if we kick off with our bullying and harassment. I'm sure everybody saw the stories in the media about the . . . It's turned into a little bit of a scandal for McDonald's, the treatment of particularly younger employees. And it seemed to be a bit of a snowball when the story broke. More and more stories came out about different branches. And there were Northern Irish branches involved in kind of the media storm that surrounded that. Seamus, can you tell us a wee bit more about that?
Seamus: Yeah. So, BBC conducted an investigation in relation to various complaints that have been raised throughout the UK in relation to various McDonald's outlets.
And McDonald's works in the aspect of . . . The investigation report is clear that the employer, these outlets, these restaurants, are often franchised out through licence agreements, and that person or that organisation or company are the employer of the business, not specifically McDonald's.
But what McDonald's do as part of that franchising process is that they provide policies and procedures. So, they do appear to have very uniform, consistent policies and procedures across the board in the UK relating to their operation of their restaurants.
The real disturbing aspect of this was that there were over 100 reports to the BBC in their investigation of alleged sexual assault, harassment, racism, bullying. There were 31 claims of sexual assault alone, and 78 related to sexual harassment.
So, the difference between harassment and assault . . . Often with harassment, I can take it from the point of view that somebody has been harassed maybe through social media, maybe through one-to-one discussions, comments made, and things like that. But the actual assault aspect is where there is touching that's happening or worse.
And so, 31 claims of sexual assault, 18 allegations of racism, and 6 allegations of homophobia. And the majority of these workers appeared to be young workers. The 16-to-24 bracket seemed to be the majority of the workers that work in these establishments.
And for a lot of them, it's their first job. So, they're coming in at a young age and this is their first job. Unfortunately, it appears that they're being exposed to very difficult working circumstances.
Young workers talked about being groped regularly, being harassed. And the disturbing thing for us in Northern Ireland was that there was one of the outlets where sexual relationships between staff members had resulted in an outbreak of gonorrhoea at the outlet itself. So, it goes to show the sort of very serious nature of what has been going on.
Really interestingly, the investigation found that managers were responsible for the harassment and assaults. And you maybe remember that the report from BBC mentions that maybe the CEO in the UK resigned from his position ultimately five years ago or so because he was having a relationship with a younger member of staff. Now, it was consensual, but it was that sort of aspect that there had been a relationship that had been happening.
And a big complaint was that senior managers, whenever the incidents were reported to senior management, they were ignored, or alternatively they weren't taken seriously.
And it records in the BBC report that there was one employee who was perching on an iPad next to a McFlurry machine, speeding through the harassment training video whilst making drinks. So, not what the expectation would be.
Doesn't that really just mirror of someone that has been given a policy or procedure, told to read it, or given a video and told to watch it, but no real intent behind that in respect of the training?
And what we see developing from the case law is two important aspects. The training can't just be, "We do have a policy for that". It has to come into the culture and the outworkings through the organisation. And then that training has to be refreshed and monitored and reviewed.
But it was interesting, I think McDonald's came back in there and they said that there obviously had been failings in relation to how things are managed, and that all employees deserve to work in a safe, respectful, and inclusive workplace. So, we'll hope that the lessons have been learned and that things are moving on in the right direction there.
And the other one that we have then, Christine, was locally within the BBC and issues arising around text messages of photographs and videos being sent by a notable presenter to other employees within a team, and that raising issues specifically itself. And then we'd also had the larger Huw Edwards aspect with presenters as well.
So, I think certainly from our standards and how we hold those standards out, whenever you have certain individuals, certain organisations, certain companies, that you do hold those to a higher standard than others.
But in saying that, the key aspect here has to be that you have a definition of harassment in the workplace and what that is. And if there is a breach in that, it has the potential then to, first of all, result in a potential grievance, or second of all, a claim against the company, because they could be held vicariously liable for the actions of their employees.
I thought it might be helpful if we looked at what harassment is in the workplace and how we define it. Bullying and harassment.
Bullying is slightly different because you'll not find the definition of bullying within the legislation, but it is a claim that can be acknowledged of happening. And if you read even some of our local tribunal judgements, you'll see references to bullying.
But harassment is what is defined. And harassment is referred to as unwanted conduct that has the purpose or the effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for an individual.
Certainly, we can give examples, we can set things out in a list, but they would never be exhaustive because you couldn't cover every possibility that could happen.
But in general, a person has to feel harassed or bullied as a result of one of their protected characteristics. And you're looking at things like gender, age, their race, religious belief, political opinion, disability, and sexual orientation. Those sorts of issues that arise and people say, "I feel harassed as a result of one of these factors".
And we always have that situation where the relationship between the employer and the employee is based on trust and confidence. Those are the two pillars that we look at.
And as you had mentioned at the start, there's an obligation on employers to make sure that they're meeting the standards, that they're meeting their duty of care to their employees, and that they're going to provide a safe environment, that there's going to be reasonable support, that investigations will be completed if there are complaints, that they will take that process forward, and that an employee can feel confident that that will happen.
I think generally we'll see two main types of policies. We'll see a general and harassment policy, or a bullying and harassment policy. And on the postgraduate course that I do with Legal-Island and University of Ulster, I cover off on grievances. And you could not really give a seminar on grievances without bringing into account the bullying and harassment aspect.
What I tend to do on that is that I will prepare and give a draft grievance process, but I also prepare and do a draft bullying and harassment process, which just is more in depth and gives more assistance to the organisation on how they should deal with an actual bullying and harassment complaint when it comes in.
These things are not easy. You're often dealing with a member of staff that is potentially vulnerable, is feeling vulnerable, and has probably grappled with the idea of whether they should raise the complaint or not raise the complaint. So, there are lots of factors that come around.
And a lot of these claims that end up in the tribunal will happen because the employer hasn't dealt with the grievance or the harassment and bullying claim appropriately and in the right way.
Ultimately, if you are found to have fallen short of your legal obligations, there will be a written judgement and you can face huge damage to the organisation's reputation.
We know the Equality Commission in Northern Ireland safeguard and promote the law in relation to discrimination, which includes harassment and the bullying. And they will promote cases where they have been successful in relation to getting a decision or obtaining compensation from an employer.
So, it's certainly something that employers need to take seriously. It is challenging and it is difficult, but it needs to be done right.
So, saying that, there is a really good piece of guidance. I just want to sort of review and go over that guidance. It's a joint venture, if I put it that way, from the Equality Commission and the Labour Relations Agency. It's specifically on harassment and bullying in the workplace. I think that Maria is going to put that up for us as well.
Christine: Yeah, she'll drop that into the chat if you want to have a look at that, anyone.
Seamus: Yeah. And it's talking about promoting an inclusive workplace. Ultimately, that's what it's about.
But I'll just show you briefly. That's the copy of it that is there. It takes it from a higher point. I think if you're looking for specific guidance on how to deal with a complaint, the Labour Relations Agency also have a separate advisory piece in relation to that.
But I thought from the point of view, and given our audience will possibly have gone through this process before . . . I thought the interesting point, Christine, was more the recent case law that we have coming forward, and the criticisms that the tribunal have had for some employers and organisations, where despite the fact that they have a policy, they're saying that it's not good enough for them to do that.
So, the guidance piece there from the Equality Commission and the Labour Relations Agency covers off on six general points. I thought it would be good just to highlight these very briefly.
The first point is in relation to the corporate commitment. And essentially what this is saying is that an organisation and an employer should have core values. They should have corporate values that are underpinned by commitments that are set out in their policies and procedures. They talk about the standard types of policies and procedures, your equal opportunities, your harassment, dignity at work, and diversity policy.
And I'm not saying every organisation needs to have 10 policies and procedures to deal with bullying and harassment. What you do need to do is make sure that you have . . . from a corporate standpoint, you're very clear about what your position is on that.
This will give comfort to your employees internally, and when it comes to recruitment, it will also give assistance to those that are looking to the company.
We did the webinar quite a while back now in relation to those sorts of corporate commitments. And this is core values that employees are expecting now whenever they go to work. This is what the expectation is.
The second point that they make is about assessing your current situation. They look to see how is your business performing and what is the current situation when it comes to bullying and harassment? Is there staff buy-in in relation to that?
They talk interestingly about this development of a joint declaration of protection. And certainly, if you're a unionised employer, there is consultation and involvement with employees via their trade union. And if you're not trade union, you are consulting and you are communicating with your employees about policies and procedures and about issues that have arisen.
It's also a good opportunity to look to see, "What has happened and how did we deal with that? Did we deal with it well enough? Were we supportive enough? Did we take the right steps?"
The third one is about communicating your commitment. And this is this sort of threading the needle through your organisation of your commitment to not standing for bullying and harassment in the workplace and giving comfort in that sense.
So, the guidance talks about that you should be communicating your commitment regularly to all members of staff, using your policies and procedures, your intranet, or wherever it is that you might keep that.
You should be providing detailed information on sources of support, whether that is flyers up in the common area like the kitchen, but having that information available for your staff.
They talk about managers needing particular training and information, and about this ability to challenge poor behaviour when it happens and not being afraid to do it.
One of the big criticisms for employers tends to be, "What's the point of me raising this? It will not be dealt with". That seems to be what comes out. And ensuring then that your policies are implemented.
Another big one is training your staff, and particularly your managers that are going to oversee and implement these policies and procedures. Everybody has to be aware and they have to understand what's acceptable in the workplace. And what are the consequences if you don't meet that threshold?
And you need to train managers on how to handle and manage complaints. There's no point having a policy and procedure in place if somebody doesn't know how to implement it or deal with it.
Employees need to be aware of the policies and how they can use them. Visibility is important when it comes to that, is what the guidance talks about.
You need to implement your policies and procedures. So, you need to have effective procedures for dealing with harassment. You need to have your policy in place and the policy needs to tell the employee and the employer how this will move forward.
And the last one is really important. It's to monitor and review progress. And the guidance talks about how you should monitor and evaluate on a regular basis and ensure that the policies that you have are effective. A great way of doing that is looking to see if you've had a complaint, how that was handled, and how it was dealt with.
And it talks about engaging with your staff and establishing sort of levels of confidence within your staff, so that they are comfortable and confident in coming to you if there is an issue that arises.
And then the last one is the big point, is that you're monitoring the complaints that you're receiving and you're looking to see, "Is there a cultural problem within my organisation in respect of how these things go?" A great one for McDonald's. They clearly missed the boat there because there were so many complaints happening.
Christine: We've got a couple of questions coming in. The first one is from a trade union official expressing concern that people find unions to be of stress, I suppose. And I suppose it's very specific to the organisation. It was just kind of a one-off comment, so, union officials, don't be overly concerned. It was one person kind of saying that that's what they're struggling with at the moment. It's certainly not a reflection on unions.
We also have a question relating to bullying and harassment. "Do you have any guidance on dealing with two counter-bullying allegations, where each employee is alleging the other one is bullying them?" I think that's very common, isn't it, Seamus? Unfortunately.
Seamus: It is.
Christine: But it is a headache.
Seamus: Yeah, it is. And often whenever there is an allegation thrown out, there is a response to that to say, "Well, I feel that I'm also being bullied and harassed by this person", and it is a difficult one to manage.
I mean, I think that what you have to do is assure both employees that an investigation will take place in relation to their allegations. Probably, if there are counter allegations against each other, I would be comfortable I think . . . It depends on the exact circumstances, but I'd be comfortable with doing a one-piece investigation to get to the root of the problem, to find out where the land lies.
Often with these circumstances, and a really frustrating one, is that sometimes there just isn't evidence to support either allegation that has been made. Now, it's different if there are witnesses, if there are written communications, social media, things like that. But often, these incidents of bullying and harassment can happen almost in the dark.
And also, you get a circumstance where everyone will say, "But those two employees are the best of friends. They're always bantering and getting on together". And then there's a sudden fallout and the wind changes direction on it. It's very difficult to manage that, but I think the approach should be an overarching investigation.
And again, you're getting clear and detailed information from each of the employees that are alleging they've been victims. And then looking at the wider scale of that of what are the evidential circumstances around that? What are the witnesses? What evidence do we have about what's happened? So, a proper and full investigation, and then a report with recommendations providing the way forward for it.
Christine: Brilliant. Thanks very much, Seamus. I'm mindful of the time, so I'm just going to kind of wrap up this section with my three takeaways on bullying and harassment.
So, firstly, you as employers have legal obligation to prevent and address bullying and harassment in the workplace. It's also a moral obligation.
Secondly, it's crucial to have clear and comprehensive anti-bullying and harassment policies in place, to provide training on those policies, and establish effective reporting mechanisms.
Now, Legal-Island has an eLearning module on bullying and harassment. If you stay tuned at the end, I'm going to give you a bit of a discount for that. So, it's worth hanging on for that.
Thirdly, you should try to foster a culture of respect and inclusivity within the workplace. This will hopefully encourage open communication and provide support to victims while you're also able to take appropriate disciplinary action if needed.
So, that wraps up that section. Let's move on to redundancy, Seamus. This is something that you're dealing with day and daily really, and that's why we're talking about it. It is becoming, unfortunately, a reality for HR in Northern Ireland more and more. So, do you want to give us a bit of an intro into that?
Seamus: Well, I think it's interesting just taking that back to the poll there in relation to a third of the listeners that are currently looking at some sort of restructure. Now, that doesn't necessarily mean that there will be redundancies flowing out from that. But I suppose the starting point in relation to any possible redundancy process is always that aspect of planning work and looking at your staffing levels.
That is something that is encouraged and should happen within any organisation to make sure that there's sufficient work for the employees that are there and looking to see, "Do we need to increase our employees because we have new work coming in or there's a pipeline of work coming?" Or where there is the potential that there is a decrease in work, we might need to look at different options in relation to our staffing complement at that point.
Fundamentally, the employer should always be looking to avoid redundancies. So, it shouldn't be a fait accompli.
Redundancies in Northern Ireland, our process is slightly different to what it is over in England and Wales. So, if you're looking at redundancies, always go to sort of our local resources here in relation to that. It's always helpful to take legal advice in relation to it, of course. But we have great support through the Labour Relations Agency and the various guidance and advice that they have online in relation to dealing with redundancy.
Redundancy is never pleasant or an easy one to deal with, but certainly, at the minute, Christine, it seems to be that it is on the increase. And certainly, the poll highlights that.
In general, when it comes to redundancies, there's lots that you could say, and you could do a whole webinar on one aspect of redundancies. I mean, if you wanted just to look at consultation. But I think we're taking a sort of broad approach to it this morning and seeing if we have any specific questions that arise.
Generally, redundancies will come around three factors. We lawyers always refer to it as ETO, and it's the economic, trade, and organisation, those factors that will impact work and staffing levels associated with the work.
So, if you think back to whenever COVID arrived with us in March/April 2020, wide state of panic, phone ringing off the hook, "Need to make redundancies, need to make redundancies". And then, of course, government stepped in with assistance, and it was able to sort of reduce the impact that COVID was having on staff and on the possibility of redundancies.
So, look, your redundancy situation always has to be genuine. It's a definite warning for anybody that says, "I don't like this employee and I need rid of them and redundancy is the easiest way to do it".
I will get a lot of calls. I'm sure you did whenever you were in private practice as well. You'll get calls like that and you'll immediately get prickly and defensive about it and say, "No, no, no. You can't do that. You're going to end up in a difficult tribunal case if that's the process that you're going to take".
So, it should never be that sort of one-on-one, "We need to get rid of this employee, so we're just going to do a reorganisation so that we can kick that person out and make them redundant". That makes things tricky and difficult.
Various other things that you need to watch out for. Obviously, consultation is a really important point of any redundancy. And whether you're in an organisation that is unionised or is not unionised, there are different processes whenever there's a union involved.
But in general, you're looking at if you're making any more than 20 employees redundant within a 90-day period within one establishment as it is, then you need to do what's called collective consultation in respect of redundancies. It needs to be reported through to the Northern Ireland Statistics board, and there are various steps that have to be taken in relation to it. So, it's important that you do get legal advice if you're going down this process.
Look, that's a really good comment from the trade union official there. I always take the approach the trade union is not there to fight or punish or battle with the employer. The trade union is there . . . If you look at any of the consultation and documentation from Labour Relations Agency, and don't forget that that's a statutory process, the trade union is there to provide assistance.
The employer should be doing their best to avoid redundancies, and the trade union is there to assist the employer in doing that.
Where that's not possible, the trade union is there to try to reduce the volume of redundancies or reduce the number of redundancies and also make sure that there's a proper process that is put in place.
And if you're doing large-scale redundancies, your job tends to be easier whenever you get on board and you liaise and work with the trade union rather than battle against them. That's my experience. So, I would agree with that comment that was made.
The other really important key aspect with the with redundancies is that you must remember that you are dealing with potential dismissals and you must follow the three-stage statutory procedure that follows with the 2003 Employment (Northern Ireland) Order and the Dispute Resolution Regulations of 2004.
If you don't follow that process, and if you fall down on any of the three-stage procedures, it's going to be an automatic unfair dismissal. So that's key.
And obviously, you need to make sure that you're properly consulting with your employees, because if you don't and there's a failure to do that, protective awards can be provided by the tribunal as well.
What surprises me all the time is that whenever I get a call from an employer about redundancies, they don't have a redundancy policy and procedure in place, and there's nothing to work from. Or sometimes they'll have a two-page document.
If you're doing large-scale redundancies, again, it is about engaging with the trade union, if there is, or with the employee representatives alternatively. It's about trying to get a redundancy policy and procedure agreed.
And that should also factor in what your selection criteria might look like as well in terms of trying to get that agreed so that everybody is clear what the process is going to be and how it's going to . . . what the outworkings of the process are going to be.
Sometimes it ends up that you are consulting individually where a trade union isn't involved, and that is a real important point. Certainly, whenever the legislation changed in and around 2004, whenever the regulations were brought in after that, lots of people fell down in relation to the failure to . . . whether they didn't meet, whether it wasn't in writing, whether or not they didn't hold the meeting, and whether they didn't then ultimately provide for an appeal always causes some difficulties.
I would still see decisions arising whereby there are issues that arise around appeals that aren't facilitated, and there's a determination then that the three-stage procedure wasn't followed. And then you see an increase in the compensatory award that's happening. That's one of the powers of the tribunal, obviously.
So, through that consultation process, you are looking at trying to avoid redundancies, reduce the number of employees being made redundant, or reducing the effects of redundancies themselves.
When it comes to your selection criteria, your selection criteria should be unbiased, it should be fair, and it should be consistent. It shouldn't be discriminatory, and certainly it shouldn't leave a group or an employee feeling, "I've been targeted specifically by these criteria, and I'm out the door because of the way that this has been drafted".
I did one recently where I assisted an employee, and it very much felt like that. And when we picked it and unravelled it, it was clear that this employee was being targeted because that was the employee that the employer wanted to go.
We asked for copies of the minutes of the determination meeting, of the scoring, of all of the discussions that took place during that process. And the employer wasn't able to produce any of that.
What resulted was that we were able to work through a process where we were able to . . . By this stage, the employee no longer wanted to work for the employer. And we were able to look at a sort of fair exit package for the employee as well.
So, you need to be very careful about your selection criteria, and there's lots of guidance out there about it. So, one of the most . . .
Christine: Sorry, Seamus.
Seamus: Yes.
Christine: I just want to jump in because there's a question that relates directly to selection criteria, and I think that would fit in here. So, should selection criteria not be excluded from any redundancy policy and agreed on a case-by-case basis, as every redundancy situation is presumably different? I think I would tend to agree with that. What about you, Seamus?
Seamus: Yeah. I mean, I think that most redundancy policies and procedures will give a flavour of the type of criteria that can be used. But if you're applying criteria to a certain group, chances are that you will need to make sure that the criteria is fair and workable and manageable.
The idea of the criteria, of course, is to come away from the selection process retaining the best employees that you have for moving the business forward, essentially. So, the criteria need to be able to get you where you need to go. It has to be criteria that will get you an end result, but it does need to be fair criteria.
And at times, you might say, "Look, listen, those five categories, none of them have a disciplinary, none of them are late, and they all did well in their appraisals. So, how are we going to move this to get a goal?" You will need to do that.
But the important point is that when you are putting your criteria together, you're making sure that you're consulting in relation to that process as well.
Christine: Yeah. And what about a compromise agreement, Seamus? When would that be appropriate to use? If you're fairly confident, you've followed your three-stage criteria, you've consulted with everyone concerned, you've had the unions in, why would you need a compromise agreement then?
Seamus: Well, I would say a lot of compromise or settlement agreements coming across my desk, and even as a practitioner where you are very confident that your client has followed a fair procedure in respect of the redundancy, there's always risk that the employee will decide that they're going to take a claim against the employer. There's always risk of that.
And often with redundancy procedures, it is personal to the employee. And often, the employee just doesn't accept that there's been a fair process that has been applied. So, there's always a risk of a claim.
I would say a lot of employers, although they may be content and happy that they've completed a fair and robust procedure, they want to minimise the risk or the costs of claims that arise.
And what they will do is they will enhance the redundancy package that has been on offer. So, they'll maybe look at the statutory package or whatever the contractual package is, and then look to enhance it on the basis that it would be subject to the employee entering into some sort of agreement.
And whether that's through a non-ET1 agreement via the Labour Relations Agency or through a compromise agreement here in Northern Ireland, the key thing for compromise agreements is that they're only legally binding if the employee obtains independent legal advice from a legal adviser, and that that legal adviser signs a certificate to say that they've provided independent legal advice.
Otherwise, if the employee signs an agreement and sends it back to an employer, it doesn't have any weight and it wouldn't preclude an employee from subsequently bringing a claim against the employer.
So, look, a lot of employment lawyers will from time to time deal with compromise agreements, and you will see them through where there are larger-scale redundancies.
And again, through negotiation and consultation with the trade union at times. That is something that can be negotiated. And ultimately, then, the employee has to obtain independent legal advice to ensure that they have been properly advised before they make a decision to sign an agreement.
Christine: Brilliant. Thanks very much, Seamus. I'm just very mindful of the time. I'm going to do my takeaways and wrap this portion up.
So, my personal takeaways are, firstly, when managing redundancies here in Northern Ireland, adhere to the statutory consultation requirements. That's first and foremost.
Secondly, ensure your selection criteria are fair and non-discriminatory, and consider alternative options such as redeployment or retraining to minimise that impact on employees.
And thirdly, a well-drafted compromise agreement can make all the difference, so do consider that.
But really, it just remains to say thanks very much, Seamus for all your insights this morning. Thanks for all your questions and your engagement. It's been great. And thanks very much to Maria for providing the tech support.
I did promise there would be an eLearning discount. So, we've created a 45-minute eLearning course for all employees in Northern Ireland to enable your organisation to help raise awareness of bullying and harassment in the workplace and explain what to do if employees are concerned.
So, we're offering all today's webinar attendees a 25% discount when this training is purchased for all staff. You can contact my colleague Debbie, debbie@legal-island.com, to claim that discount. Also look out for that in the post-webinar email.
Seamus and I are also at the Annual Review this year. It's on 7 November. It's a hybrid event, so you can come along and see us both in person, or you can log in from the comfort of your home or office. We'd love to see you there.
Of course, if you want to catch up on Employment Law at 11 if you've missed any episodes, we are on Spotify, Amazon, and Apple Podcasts. You can find us there.
And of course, if you want to connect with myself or Seamus, we're on LinkedIn, and we'd be very happy to connect with you.
But thank you so much, everybody, for joining in today, and we will see you in October, on 6 October, for our next Employment Law at 11. Thanks very much, everybody.
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