Restructure

Legal Definition

• In law = Business Reorganisation

Lord Denning: “It is important that nothing should be

done to impair the ability of employers to re-organise the workforce and their terms & conditions of work so as to improve efficiency”

Making it happen

• Decide what needs to be done

• Make the business case

• Identify the posts affected

• Create an implementation plan

• Implement

• Review

What do you need to do

1• SWAT Analysis

• Decide what needs to change– identify the issue / business reason

• Consider what you must do • Charitable objectives• Organisation’s mission• People you want to work with• Services you need to deliver• Staff you must have

2• Decide what works

– Service delivery– People in jobs– Systems

• Decide what doesn’t work– Service delivery– People in jobs– systems

• Think about the changes you want

The Business Case-1

The Aim:• To achieve the best structure to deliver the

services within the budget you have

• Summary of SWOT analysis

• What the proposal is and why

2 • Communication with employees

– Key to success – Agreeing changes– Supportive during implementation

• How you will communicate with staff– Individuals affected– Staff meetings– Emails on progress

• How staff can communicate with you– Those affected– The rest

• Consultation period – 20 working days

3• Jobs/Staff affected

– Explain Current role– How identified– Explain what changes– Recommendations on process

• Jobs created – description of roles– Rationale– How they fit within the new structure– How they will be filled

4• New Structure

– Descriptions – diagrams

• Timescale– Decide when you want new structure to be

in place and work backwards– List who is involved– Time lines and Dates

Problem arises:

• Where employer wishes to reorganise operations in such a way as to make changes to employee’s job or the way s/he carries it out

• Employee’s contract is static so s/he can insist on continuing to perform it as it stands

• But sensible balance needs to be achieved to allow changes to be made

Sensible Balance

• Can lead to changes in terms & conditions of employment

• Can lead to dismissals

• Potentially fair reason for dismissal

• Right of employer to dismiss employee who refuses to go along with business reorganisation

Employee may be dismissed

• For refusing to agree to the resulting change

Or

• Because the kind of work they do ceases or diminishes Redundancy

Some Other Substantial Reason

SOSR

• Catch all phrase for potentially fair reasons not covered by others

• Employer required to show a substantial reason, and

• That substantial reason is a fair one

Substantial Reason

• Must be – Genuine

– Sound business reason

– Some serious effect on business

• Putting business case together is essential!

Refusal to agree to change

• If contract allows misconduct - disciplinary

• If contract does not allow SOSR dismissal

Establishing SOSR -

The Fairness Test

• Prove the reason for dismissal– Result of restructure– Reasonable response

• Submit evidence:– What the business reasons were– That they were substantial

The business case will help!!

SOSR in Employment Tribunals

Employment Tribunal decides whether employer acted reasonably in dismissing for SOSR:

• Employee consultation• Fair hearing & appeal• Whether employer searched for available

alternative employment• Range of reasonable responses that a

reasonable employer might adopt

What is Redundancy?

A redundancy is a dismissal which occurs when there is:

• closure of the business as a whole;• closure of the business at a particular workplace; or

• requirement for employees to carry out work of a particular kind ceases or diminishes

Redundancy dismissal

• Potentially fair reason for dismissal• How reasonable is the decision that

redundancy is necessary – the business case

• The rest of the procedure is fair• Automatically unfair in some

circumstances, for example on grounds of pregnancy/childbirth

Reasonable Conclusion

Two factual questions:

• Has the requirement for a particular kind of work to be carried out ceased or diminished

• Is the dismissal wholly or mainly owing to that reduction

= has one brought about the other?

A fair procedure

Includes three elements:

• Selection – the pool & criteria

• Individual Consultation

• Offer of Suitable Alternative Employment

Legal Update

Volunteer

X v Mid Sussex Citizens Advice Bureau CA 2011The Court of Appeal has decided that an unpaid volunteer was not covered by the Disability Discrimination Act 1995. The volunteer was not in 'employment', since she had no contract, and nor was the voluntary work an arrangement made by the respondent for determining to whom it would eventually offer employment. The Court also rejected the argument that the EU Equal Treatment Framework Directive, which also prohibits discrimination in relation to 'occupation', covers volunteers.

The Court's decision has implications for all of the protected characteristics now covered by the Equality Act 2010.

Repeal of Default Retirement Age Employees lawfully retired provided

Notice was given by 5th April 2011 Employee is or will attain 65 by 30th Sep 2011

If given 12 months’ notice on 5th April 2011, then last day for employee to request to continue working is 5 Jan 2012 – 3 months before notice runs out

Last date to issue extension of 6 months is 5th April 2012 Very last day for retiring employee will be 3rd October 2012

= 12 months notice + 6 months extension Will still be possible to retire employee if can be

objectively justified

http://www.acas.gov.uk/CHttpHandler.ashx?id=2976&p=0

April 2011• Equalities Act 2010 in force:

– Medical information– Compromise Agreements (S. 147)– Positive action in recruitment– Duel discrimination rules postponed again

• Flexible working – extended to 18, consult on application to all

• Additional Paternity Leave – up to 26 weeks, share of SMP payments

• Right to request training postponed • Bribery Act 2010• Employers Charter

Equality Duty

July 2011• Watered down from that in the DDA• Equality Act 2010 creates a single public

sector equality duty, and states that specific duties can be created to help public bodies meet their requirements under this general duty.

• The Government published draft Regulations on the specific duties in January 2011, but is seeking views on revised draft Regulations that reduce the burden on public bodies.

October 2011• Agency Workers Regulations 2010 come into force• NMW rates: £6.08; £4.98; £3.64 & £2.60

By & during 2012• Parental leave increased from 3 months to 4 for each

parent, only 3 months transferable• Obligation on employers to enrol staff in contributory

pensions

And beyond• Allowing parents to share maternity & paternity leave

instead of mother having to return to work before father can take additional paternity leave

Vetting & Barring Scheme• Merging CRB and Independent Safeguarding

Authority (ISA)• Reducing number of positions requiring

checks to just ‘most’ closely/regular work• Portable CRB checks between jobs• Removing requirement for volunteers working

with vulnerable groups to register and be monitored

• Changes included in Protection of Freedom Bill intended to replace the Human Rights Act 1998 in 2012

Reform of Tribunal System - Consultation• Increase qualifying period for claiming unfair dismissal to 2

years• Charge fee to lodge tribunal claim• Parties to pay fees for ET and EAT• All claims submitted to ACAS before tribunal for pre-claim

conciliation• Automatic financial penalties for employers in breach of

employment rights paid to exchequer• Reviewing formula for calculating tribunal awards and

statutory redundancy payment limits