Organisational Design & Restructuring Including Terms & Conditions & Redundancies

Posted in : Webinar Recordings on 9 July 2020
Caroline McEnery
The HR Suite
Issues covered: Coronavirus; Organisational Design; Restructuring

One of the unexpected consequences of Covid-19 has been a substantial change in the way many of us work and for some organisations and employees this has been a very positive experience.

In this webinar recording Caroline McEnery, the HR Suite, will discuss how to carry out organisation redesign and restructuring to help employers cope with the impact on their business efficacy of the pandemic.  This will inevitably include some renegotiation of terms and conditions and potential redundancy.

The Recording

         

Transcript

Rolanda: Good afternoon, everyone and welcome to our webinar with myself Rolanda Markey from Legal Island, and Caroline McEnery, the Managing Director of The HR Suite. Caroline is past member of the Low Pay Commission and is also an adjudicator in the Workplace Relations Commission. She has completed a Masters in Human Resources through the University of Limerick. She is CIPD accredited, as well as being a trained mediator, very qualified lady.

Caroline has worked across various sectors of human resources for over 20 years in the Kerry Group and in the retail and hospitality sectors where she was the operations and HR director of the Garvey Group prior to setting up The HR Suite in 2009. Caroline speaks widely and writes articles and papers on thought leadership in relation to the future landscape of human resources on the challenges and opportunities that presents for employers and employees.

In today's webinar, Caroline will discuss how to carry out organisational redesign and restructuring to help employers cope with the impact on their business efficacy of the pandemic. This will inevitably include some renegotiation of terms, conditions and potential redundancies.

We have received quite a few questions already. And we try and get through those in this session today. You're very welcome to send your questions and using the question box on your screen. And if we do not get through these today, we try and follow up with them. We have another webinar next week on focusing sort of more specifically on redundancy selection. So we will try and maybe get through those during that session, which is next Wednesday, on, sorry, the 15th of July with Scott Alexander and CC Solicitors.

So Caroline, as I said, is going to discuss really how to principally reduce the number of compulsory redundancies you may need to make by focusing on things like redesign. And obviously, this is a good time to do that because people have been working differently, Caroline. So it's a good opportunity for employers to assess why they do things.

Caroline: Absolutely. Good morning, everybody. Delighted to be talking to you all this morning on this really topical area. I suppose over the last number of weeks, we've been working a lot with HR managers and business owners to help them I suppose with the hard and tough decisions now, in relation to aligning their HR strategy to the business strategy and the decisions that have been made in relation to potentially changes in customer offering, changes in terms of the number of people that will be required going forward to provide support to the business.

And a lot of the types of change are things that wouldn't be typical in an HR department on an ongoing basis. And I suppose, as a result, we're trying to help HR managers and business owners to do this as fast and as legally as possible. And second of all, to make sure that we do it as compassionately as possible for the people who are affected, but also for the people who are remaining because, from a moral perspective, if you don't do organisational and change management correctly, and organisational redesign, etc., with it all the change in the backdrop of COVID-19, which has, you know, given people probably additional stresses, etc. It's probably one of the most important organisational reviews and redesigns that businesses will do.

So I suppose in today's webinar, as you rightly said, Rolanda, we're going to focus on, first of all, HR as a role in terms of supporting the business strategy, and what that change will look like. We're going to cover what are the employer options. We're going to look at selection criteria and what that looks like. We're going to touch on that because another webinar is going to be focusing in more detail. We're going to talk about redundancies, and obviously, redundancy is the last resort. But unfortunately, we're assisting a lot of companies with that process because of the fact that it's inevitable at this stage for whatever reason.

Alternatives to Redundancy – An Employers Options

So to start with, I suppose we're going to look at what are the employer options and what are the typical challenges that we're encountering in relation to these areas. So to start with, I suppose some organisations are looking at a temporary reduction in hours. And that I suppose involves a number of different options. So, for example, that might mean that instead of somebody working their typical five-day week, as they have now returned to work, that they might be working a three-day a week, and they might be put on short time for the other two days. It might mean that people are job sharing and, again, there's a temporary reduction to facilitate all the people to be maintained in employment once the hope is that there's going to be an uptick in business as the weeks go by.

In terms of the reduction, basically with all of these changes, obviously reviewing the employee's contract of employment, and reviewing the employee's staff handbook are crucial to identifying what are the terms that we've signed up to and explained and agreed to the employee that we will follow as an organisation because now we must follow that process as we go through.

So taking that as the backdrop, we start with a temporary reduction of hours. So that will, obviously, the first port of call will be done in consultation with employees. And for some people, because they're still having challenges with childcare or other areas like that, it suits them to potentially take a temporary reduction in hours. So our first port of call is all of the things is to ask for volunteers, once everybody has the same skill set and you know, the business is not negatively impacted for that reason.

If it's the case that it's skill specific, obviously, our selection criteria can't be voluntary because, you know, you need the specific skills that the business requires in that regard. And we talk more about that as the webinar goes on.

So the, I suppose, selection criteria around, you know, whatever method we're looking at, in terms of, you know, wage reduction, etc., the more consistent we are with the reduction in hours are indeed a wage reduction, the better it is so that at least we can show that we're treating everybody the same. So, for example, if we're doing our wage reduction, it's objectively justified as to how we're doing that. And the normal criteria, whether it's reducing hours or doing a wage reduction would be to try and apply it across, for example, a specific department or apply it across specific pay grades.

So for example, some of the wage reductions that we've been implementing have been for employees over a certain salary that they're being asked to take a specific reduction. For people within another band, they're being asked to take a different reduction, etc. So again, you're showing that that's objectively justified if you're taking that approach. And again, that might be for a period of three months. It might be for a period of six months. It might be until January. And that's what the employee is signing up to, in terms of the reduction in hours and in terms of the wage reduction.

I suppose it's an important first step to show that we've tried to take as many alternative measures as we can before we start to get into, I suppose, you know, layoff which is more, you know, significant for the employee, especially now that, hopefully, they've been back after COVID, even though we'll talk about those that haven't also, and obviously also redundancy. So, we're trying to see what other options are available to us and trying to avoid job losses.

Choosing Selection Criteria for Redundancy

So, if we look at the selection criteria that, you know, we'd be expected to apply in a fair and reasonable manner in relation to, for example, even bringing people back to work after being out or indeed now considering laying people off for a further period are indeed considering redundancy. The normal, I suppose, selection criteria, which, again, the requirement is that it's reasonably objectively justified. So again, it's possibly first in, first out. So again, whoever came in last, they would leave. So first in, first out.

The next possibility is that you will do a selection matrix, which is tailored specifically based on the skills that are required. And this could be different for various departments. Because you may have different skill sets in different departments and different areas of expertise. So, for example, you might have four people in the accounts department, and two of the people can do payroll. So as a result, you might place a higher weight on the fact that they can do payroll than the other two.

However, as you explore that in the consultation phase, if one of them says, "Well, I have a qualification in payroll, you know, I've done it before in previous jobs, it won't take a lot to get me trained up," you would have to take that into account when you're doing that, you know, consideration in relation to selection criteria.

And the other I suppose selection criteria that's often used is department specific. So for example, in a hotel, it might be a case that previously the laundry was done in-house and now the laundry is going to be outsourced. So as a result, that department is at risk of being made redundant, but as you commenced the consultation process, it's trying to identify can those staff members be trained to do other jobs within the hotel because always redundancy has to be seen as a last resort.

And we're always trying to be conscious of equality legislation, particularly so somebody can't say, "Look, I feel I was discriminated against because of my age, because of my gender," you know, etc., or indeed, the unfair dismissals legislation where somebody says, "Listen, this redundancy is only put in place because it's opportunistic. It's to do with my performance. And, you know, I feel that I'm being targeted here. And this is a cloak to pretend it's a redundancy, but it's not." And that's particularly I suppose challenging when you might only be making one role redundant in an organisation. So again, you have to be extra careful.

Remember, at the minute, a lot of organisations are looking for cost savings wherever they can find them. And again, the redundancy conversation has commenced but it must always be a case that nothing is agreed until the consultation phase is fully explored. And the paper trail in that regard needs to be very closely managed. Because remember, any employee has the option to do a Data Access Request. And there being an email to say this was a fait accompli before the process ever starts would obviously be a key concern.

Steps in a Redundancy Process

So I suppose if we talk a little bit then in terms of the redundancy itself, I suppose the consultation phase is probably the most challenging and important part of redundancy. So as we start the redundancy process, we're going to be letting the employee know that we've exhausted all other measures. So we've considered, you know, voluntary redundancy and normally you would try as I say, unless it's a skills reason that you wouldn't offer voluntary redundancy. What if, for example, you have a call centre, and a number of people are doing the same job. The idea is that you would start with voluntary redundancy and always explain why you didn't if you choose not to, as I say, based on skills or other reasons.

So the consultation process starts with letting the person know that their position is at risk of being made redundant, and it's being considered as part of that redundancy process. And you're going to keep your paper trail and communicate with the employee as you go along but giving them full opportunity to put forward other suggestions to avoid the redundancy occurring. So they may put forward alternative roles they could do. They might put forward alternatives in terms of job sharing between two people so both could stay on the books, will just work half time each. They could put forward an option that they can make a saving by, for example, bringing the payroll that was being outsourced in-house and make a saving to make their role more viable as a result.

And whatever suggestion is put forward during the consultation phase, which shouldn't be rushed. And again, it's making sure that we give the person the opportunity to be fully heard. And often that is what comes as an issue for the employee to say, "Listen, I really feel I didn't get the opportunity to be heard. I feel this was a fait accompli." And, you know, so it's really important that when they put forward the suggestions that we basically say, "Okay, thanks a million for those. I'm now going to go away and explore them and discuss them with all the relevant parties."

And once you've done that consultation with the other party, you come back and you do a further consultation with the employee and give them further opportunity to push forward further suggestions or consult with you further because, with redundancy, it's always the role and not the person that's being made redundant. And that's why it can never be due to the person's performance that we're making the person redundant, unless you're doing a skills matrix, and you're saying, "Well, we're going to include performance as criteria in that skills matrix."

But if you do that, you need to be able to objectively justify how you have been scoring and ranking the employees. They need to have been aware of it. They need to have had an opportunity to contribute to improving their performance, etc., to show that it is the role, not the person that's been made redundant.

So during consultation, you will often experience the issue where the employee when they hear their job is being made at risk of redundancy, that they potentially could go out sick on work-related stress, etc. I suppose from the outset, we're going to acknowledge to the person how we appreciate and empathise that this is a very stressful situation for their job to be at risk and doing the expectation structuring from the very outset, in relation to that consultation so that, you know, you're leading them into it is really important.

It's also important to offer them any support that you provide. So, for example, you might have an employee assistance program or any other supports that are in place from the outset for that employee. Again, depending on your policy, you're going to decide who would be present at that meeting with them at that stage of the process. But, again, it would be usual to let them have somebody with them as a support, which normally may be a work colleague, depending again, on your own policy.

During redundancy, consultation are at the stage of at risk. If the employee goes out sick, we would normally send them to an occupational health doctor. And obviously, we would explain to the occupational health doctor that the person is in the middle of a redundancy conversation, and we've only just commenced, and we just want to identify if the person is fit enough to engage in those conversations. Because most of the time, the occupational health doctor will deem that leaving the person out for longer will only add to their stress. So they may not be certified as fit to return to the work environment, but they would be certified may be to engage in the consultation process because, in many ways, it's kicking the can down the road for the person, and the stress will remain while the process continues. So if that happens, I would encourage you to do that.

If the person comes back and they say, "Look, I have no alternatives to the redundancy. It seems like a fait accompli," I would go back and reiterate how it's not and gives them a further opportunity to come back to you and explain that if they put nothing forward, like, you've considered all the other alternatives and you don't see any other roles or you don't see any other potential cost savings, etc., but you're open to see what they come up with.

So I would always try and slow the pace a little bit. And it doesn't need to be weeks in the middle. It can be a reasonable amount of time in the middle. But if the person asks for an extra couple of days, I would have no hassle in doing that because it's important that you're giving the person that full opportunity to feel heard and to go through that process because the more they do feel heard, the less likely they will be taken on Unfair Dismissals Act case, or the Employment Equality Act case, and the more they'll understand that is the role and not the person that is being made redundant. And, again, that you're being objective, you know, throughout it.

I suppose the consultation process should start as reasonably as practicable ASAP because what you don't want is for the healthy grapevine in the organisation to start telling people, "Look, we've heard your department is at risk," etc. So by the time you get to tell them, they are anxious and stressed and feel, you know, that the trust relationship may be already damaged. So I would say consult as soon as reasonably practical. I suppose failure to consult has an award of up to four weeks wages. And I suppose failure to comply with any other requirements under the redundancy acts has compensation of up to two year's salary, but it also has reinstatement and reengagement of the employee back into their role. So it's important to ensure that we do follow that consultation process.

When we look at alternative roles, it's really important to remember that when we ask the employee to say, "Listen, is there any roles you think might be suitable?" it's the employee we're asking to come up with what do they see as suitable. You know, I suppose I wouldn't ever say, "Well, that's not suitable," at that same meeting, obviously, also at the moment because some employees may be working remotely, etc.

The question arose as to whether it would be appropriate to do consultation via Zoom meetings or not. And I suppose, for me, I think because it's such a sensitive area, the more practical it is to do it as empathetically as possible, needs to be taken into consideration. And depending on the employee, Zoom may be appropriate in that regard or maybe it needs to be a meeting. And I think you have to take that on a case by case basis. But if you were doing a call or a Zoom, I would say to the employee, "Would you prefer to meet or are you happy enough to do a Zoom?" And if the employee says, "No, I prefer to meet," well, then I would meet on that basis because some employees would feel more comfortable in that regard.

I suppose the other thing that comes up often during that consultation process is potential changes to the employee's role. So, again, you would possibly as an organisation come up with, "Okay, the role, Caroline, you used to do before, which had a salary of 50,000 euro and had these skills, the only alternative we've come up with as a company is a 40,000 role. And this is what it looks like." Again, the employee has the option to say, "Yeah, I'm happy to be considered for that role."

And remember, it's not that you're going to make them, you know, interview for it, etc., unnecessarily because your obligation is to try and do everything you can to ensure that you're trying to find an alternative to the redundancy.

It's also crucially important and there's lots of case law to show the importance of engaging with anybody who is and has been out of the organisation. So there's one very relevant pregnancy-related case, which showed that this employee was out of the organisation on the lead up to a reorganisation and restructure, where it turned out that her job ended up being at risk of redundancy and ultimately be made redundant. But she was able to show that because she wasn't in the organisation on the lead up to the redundancy and the reorganisational design occurring, that she was at much disadvantaged.

And again, it's a bigger obligation, that if you have somebody who is just returned to the business for whatever reason, particularly, maternity, etc., or absence, or something to do with disability or illness, etc., that you go to even greater lengths to ensure that you have . . . you can show that you fairly did that consultation process, especially if it's individuals rather than numbers of people from specific departments. But again, just to be conscious of the importance of consultation and also doing the very detailed paper trail to complement that consultation stage to show, you know, following on from this meeting, "This is what we discussed. This is what you presented. This is what we considered. This is our response," etc. So, again, for a third party at a later date, they can clearly see what was the process that you followed, and how you took on board anything that was potentially presented.

Collective Redundancy Consultation

The next area just to be aware of is the potential of collective redundancies. And if the numbers of employees who are being made redundant exceed 5 employees, where there's 21 to 49, 10 employees where there's 50 to 99 or 10% of the employees where there's 100 to 299 or 30 employees where there's 300 or more, that then falls into the remit of a collective redundancy. And the protection of Employment Acts and outlines further obligations on the employer in that regard, including the requirement to give written notice of the proposed redundancies both to the minister and also to the employee representative at least 30 days before any redundancy would occur. And that's an important one that we're already seeing, you know, issues associated with it in the news and in the media, at the moment linked to closures during COVID.

Redundancy Payments

So the redundancy payment will depend, again, on your terms and conditions and what your terms outline. The statutory payment is two years. Continuous service is required for the employee to be entitled to a redundancy payment, which is two weeks salary for every year plus a bonus week. And the payment will depend on the hours of work and the gross salary that the employee will be earning. And, again, the redundancy payments calculator will outline the caps and all the different criteria associated with doing that calculation, which is really helpful in that regard. But then your own specific terms and conditions in your staff handbook are potential precedents or custom practice you have in place will then come into play thereafter in relation to any additional payments that those employees may be entitled to.

Many clients of ours will potentially pay an ex-gratia payments to the employee, or at least offer the ex-gratia payment to the employee subject to them signing a waiver to confirm that, you know, they've agreed that this is a full and final settlement of both the redundancy and any other potential claims. So for many organisations, paying that ex-gratia means that they know once the employee signs the waiver, which is a document that you give to the employee, and within it, it says that the employee has been given the chance to get legal advice prior to them signing the waiver. And, again, we're happy to assist any organisation who needs to potentially consider that option.

I suppose, in the middle of COVID, there has been a change into the Redundancy Payment Act, because previously, if an employee was on layoff or short time for a period of four weeks or more, or six weeks in the last 13 weeks, the employee was able to give the employer a notice in writing of their intention to claim redundancy if the employer couldn't guarantee the employee that they could bring them back and have a full stint of work available for them.

But under the emergency measures in the Public Interest COVID bill, this section has been paused until the 10th of August. And many organisations are making the decisions in relation to changes to terms and conditions, changes to pay and benefits and potential layoffs and redundancies because they're pre-empting the fact that this may not be continued by the government after the 10th of August. And if that's the case, ultimately, I suppose the pre-empting what changes may need to be made.

I suppose other considerations then are . . . Like, many will say that during the at-risk stage, the employee themselves or the employee's representative or the employee's solicitor may request a without prejudice conversation with the employer. And it's important that without prejudice conversations normally happen between two solicitors or two legal representatives.

So if you are engaging without prejudice conversations, which we would do a lot on behalf of our clients, we would be very clear with the person we're having that without prejudice conversation that, you know, it is without prejudice. However, doing directly with an employee, you need to be very careful, especially if it's the case that you're the one who wants to initiate it. Because officially, the employee could say, "Look, I didn't know what you meant by that," etc. So again, I would just say tread very carefully in those types of conversations, if you don't have a third-party involved.

And, again, sometimes if parties get stuck and, for example, they're not agreeing to the terms around the redundancy, but the employee accepts that redundancy should occur, that's where it's useful sometimes to get a mediator involved or to have those kind of conversations to move the process on to avoid a potential claim at a later date.

The other, I suppose, you know, considerations to remember are looking at people's individual circumstances and being as empathetic and compassionate as we can. And I would always advise that after a redundancy process occurs, we should offer any help we can in terms of assisting the employee with their CV, interview skills, etc., to try and minimise the amount of time that they are unemployed after a redundancy occurs. And the more you can do in that regard, the more positive it is. And, again, we're happy to assist in any way we can in that regard.

I suppose two other key considerations in light of COVID are that if you have an employee who's on the pandemic payments or the PUP as it's known, which is the layoff payment, then you can, you know, I suppose, look at whether or not it's feasible to bring that employee back from layoff. But obviously, you need to engage and consult with them, etc., in that regard.

I suppose the Wage Subsidy Scheme is different insofar as the employees at work is an employee on the books. So it's important that you remember that the terms of the wage subsidy has been that while the person is on the wage subsidy that you would try and retain them in employment. So again, just to be aware, that if you are going down the redundancy approach or process that you're aware of, if you are using any of the different schemes that you're clear in relation to your obligations, in relation to the terms of those schemes.

Social Insurance Fund

And finally, just to mention, the Social Insurance Fund is in place for employers who financially can't afford to pay the redundancy. And if it's the case that the employer is not in position, you know, to pay the actual redundancy, they can apply and basically the employee will apply if it's a case that the employer hasn't actually paid the money. The other thing I suppose is that you would advise the employee to say, "Look, we're not in a position to pay the redundancy statutory lump sum." So, therefore, they complete the RP50 form. And basically, the employer would sign it and the employee would sign it. And basically, then it would go to the DSP and they would process it. And that RP50 form is an important part of that and that RP77, so there's lots of information available online for that.

If you are saying you can't afford to pay for the redundancies, you need to provide backup evidence which you may be able to get from your accountant to show that you're not in a position to pay that. And normally, they would also look for audited accounts in that regard.

So that's probably a whistle-stop tour. I want to leave some time for some questions. And obviously, the whole focus of this is we want to try and do as much as we can to avoid redundancy. And then if we look at what are the other alternatives in terms of reduced hours, in terms of job sharing, in terms of pay reduction in relation to bonus, and pausing, in relation to changes in terms and, again, all of those, whether or not you can do them enforcibly depends on what your contracts of employment and your terms say because we're all familiar with the B&Q case in relation to the bonuses and the obligation in relation to changing bonuses. And we'll come back to what does it say in the terms. But again, it's trying to avoid job losses. And I appreciate that they're inevitable in some scenarios. We're trying to avoid them if we can at all.

So, Rolanda, I'll pass back over to you for any questions, maybe, and then we'll go from there.

Q&A - Consultation

Rolanda: Thanks very much for that, Caroline. That's very helpful. And you've answered quite a few of the questions that come in during your session there. So I'll pick up just on one or two things that had also come in. You mentioned the collective consultation, and somebody had asked about that. We'll send some information in the follow-up email about collective consultation just to reiterate the breakdown of the conditions on which that applies later today.

In terms of consultation, Caroline, what if somebody says or somebody is basically unwilling to engage in a consultation meeting with you, and they say, "I can't, I'm sick," or, you know, they don't engage with the employer in the consultation?

Caroline: I suppose the worst-case scenario is when you start the at-risk conversation is the person goes and tries to get an injunction to prevent you proceeding with it. So that's the absolute extreme of refusal to engage. If the person and says they're unwell, I would send them to occupational health to try and get occupational health to agree that they're well enough to be involved in the consultation process. If they're still refusing to engage and it's not a medical reason, and it often stress is the medical reason, but if it's not a medical reason, I would go back to the person and, again, talk to them and follow up in writing to say, "Look, I've met you during consultation, you've been outlining your job is at risk. We want you to engage. You haven't presented any alternatives to the redundancy. And we want to really outline to you that there is no decision yet made. We really want you to put forward any alternative suggestions. So we're giving you a further three days to do that. And we will re-consult with you on Friday to see if you have anything further for us to consider." So that you're showing, again, reasonableness and, you know, fairness that you've made all reasonable efforts.

What if the person still doesn't engage? You need to move on with the process. But, again, you're trying to show that you didn't just say, "Okay, so I'm moving on after one conversation." You're accepting that this is a big shock to the person. They're obviously very upset as a result of it. So, you know, it's the employer's obligation to show they made all reasonable efforts. And to me, reasonable efforts means more than, if you do meet kind of a bit of an obstacle along the way.

Rolanda: Yes, that's very helpful. Thanks, Caroline.

In terms of consultation, again, you mentioned earlier and about the PUP scheme and people on it who may be at risk of redundancy. So just to clarify, is it okay to assume you don't need to bring them back into employment under, for example, the temporary Wage Subsidy Scheme in order to carry out redundancy consultation?

Caroline: I wouldn't. I think that would just be adding to the kind of, I suppose, upset nearly for the person, especially if there isn't a job for them to return to. So I think you would start the consultation process, you know, with the person to say, "Look, you're on layoff, we're concerned in relation to your return." And instead of bringing them back on the wage subsidy, I would bring them back on the payroll for those meetings and those conversations because the Wage Subsidy Scheme is when somebody is on it, it's supposed to be to protect their job from being, you know, at risk.

So I would bring them back for the consultation and engagement process. And I would pay them while they're going through that process once they're engaging positively with that for the number of weeks that that would go on, because I think bringing them back on the Wage Subsidy Scheme and putting them on it when their job is going to be likely made redundant, probably doesn't make sense. Now, as we always say, you look at everything on a case by case basis. But, you know, I think it makes it more difficult.

Recently, we had a client who had an entire department within their business that was being made redundant but within that department, they had a star employee, and they brought the star employee back and moved them into another department while everybody else was left on the PUP. And again, it created a huge amount of issues internally. Because when they went to say, "Look, the entire department is at risk of being made redundant, everybody, you know, straightaway would say, "Well, what about that person? She's been treated differently to the rest of us? Why is that?"

And again, it can't be the person, it has to be the role. So, again, the company made a fatal flaw by starting to differentiate people based on performance, rather than look at what is the role that these people do and consult on that basis. So I think, you know, it's very difficult when you're in the midst of the manager saying, "Listen, I really want to keep Johnny, he's the best thing since sliced bread," yet the whole department is at risk of being made redundant and remembering the objectivity of what's required here needs to be associated with the roles and not the person. So I think that's where the challenge arises. And that's why going through a detailed consultation process where you can explore other jobs within the organisation based on people's skills and preferences, etc., is really important to exhaust that consultation process.

Q&A – Redeployment

Rolanda: And just talking about alternative employment, a quick question, I suppose more to clarify. If someone agrees to take alternative employment, they deem it suitable and they take it up, the employer doesn't have to pay them a redundancy payment because their employment isn't ending and they're continuing on. Isn't that correct?

Caroline: Absolutely. Indeed, it does. Exactly. So, again, in your paper trail you're going to confirm that, you know, "We're delighted to confirm that your job now is no longer at risk of being made redundant. You've accepted this role as an alternative on these terms and conditions, etc." And then I would get the employee to sign that off. So that you know, there can't be any comeback afterwards.

Often as well, the person may link a trial period into some of those types of roles. If there's a significant change to say, "Look, we're willing to give you a chance to trial it," or the employee may say, "Look, can redundancy still be there? But can I trial this job." And normally, you might put a caveat in place of a relatively short period of time to allow that trial to happen for the good of the employee, not losing their role and for the good of the company retaining positive skills. So, again, there are options that can be done but recording that in detail in the paper trail and ensuring that there's sign off and agreements from the parties, again, to avoid ambiguity is really important.

Rolanda: And whenever you're discussing alternative roles with somebody that's obviously part of the consultation process, you know, you've said there's three roles and, you know, can you come back to me and let me know whether you're interested in any of those positions? What would be a reasonable amount of time to give them to consider that? Because for some people, that may be it may result in substantial changes in pay, etc.

Caroline: Yeah, I would always suggest approximately a week. But I would say to the employee, "Look, how long do you feel you need?" But I wouldn't go over a week unless they gave you very good reason why because, again, the longer these processes go on, it needs to be a reasonable amount of time to give them time to consult with their family, consider what they want themselves, etc. But I think when you make it too long, that it defeats, you know, the process of the momentum of the process. So I think a week, Rolanda, would be fair and reasonable, again, with agreement with the employee for that to be less or more.

Like, some employees will say, "Listen, I don't want this going on for any longer. Can we just, you know, fast track the process?" And I'd be slow to do that too quickly. Because, again, the person could say, "Well, I was so shell shocked that I didn't actually realise what was being asked to me when I was asked to consult, and I didn't realise. And now that I see Johnny over there after suggesting another role, I would have done the same if that had been explained to me, but I was stressed and traumatised."

So I would always press pause, do the follow up in writing, and then I would only give the person, you know, the follow-up, you know, once they had, you know, been given that opportunity on two occasions because I use the example of the case law with the lady who returned from maternity leave, which is a recent enough WRC case. And, again, that highlights the importance of really using consultation robustly to protect the organisation to any potential claims thereafter. And as I say, that's what we're here to assist with if the need arises also.

Rolanda: Thank you so much, Caroline, for your time. And we're just out of time, folks, but thanks very much for tuning in today. Just a couple of administrative things before we leave. On your screen, you should see a slide with all our new eLearning training courses. Our newest one is the COVID induction, the return to work safely COVID induction training, which has proven very popular because as you know, under safety protocols you have to do induction training with staff returning to work. So any information needing relation to that, be in the follow-up email.

Just our next webinar's coming up then, and Caroline mentioned and I mentioned as well, that next week are going to look in a wee bit more detail about the selection criteria that you use to select employees, really to avoid claims of discriminatory selection, Caroline referred to a pregnancy case there. There's lots of vulnerable people at the minute who you're shading or cocooning or, you know, off during the COVID-19. So it's important to be very careful how you carry out that selection. And that's on the 15th of July.

We also have a webinar on the 23rd of July, and this is to give you a bit of an overview of a postgraduate certificate in employment law, then that's Northern Ireland employment law. We're offering this course with the Ulster University online this year. So it means that anyone perhaps outside the Northern Ireland jurisdiction who is interested in getting qualification in Northern Ireland employment law, can participate in the course this year, to get more information about that course, during the webinar on 23rd of July.

And then finally, on the 24th of July, we will be doing a webinar to outline some information on our annual review of Irish Employment Law, which is taking place in November of this year. Caroline will be one of the speakers at our Employment Law Conference. That is the biggest event of the year. And everyone really looks forward to it. And we're putting a lot of time and effort into ensuring that the experience whilst online is as enjoyable as it has been every other year. So, once again, thank you all very much for your time. Thanks again, Caroline, and we'll catch up with you again next month. Thanks now. Bye-bye.

   

This article is correct at 09/07/2020
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline McEnery
The HR Suite

The main content of this article was provided by Caroline McEnery. Contact telephone number is +353 66 710 2887 / +353 86 775 2064 or email info@thehrsuite.com

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