IT SEEMS TO ME that the extent to which the Employment Rights Act 2012 has affected the employment contract and decisions in respect of the contract is not fully appreciated.
One issue that I have been consulted about with increasing frequency in recent times is the aspect of redundancy.
Essentially redundancy for the purposes of the Employment Rights Act embraces in most cases the following situations:
1. the closure of a business;
2. the closure of a business at a particular location where an employee is employed;
3. a reduction in the size of the workforce.
The actual language of the legislation is found in Section 31(2) of the act.
The act treats redundancy as a fair reason for dismissal but it requires consultation in certain circumstances.
Section 29(c) of the act gives the employer the right to dismiss an employee for redundancy but this right is subject to Section 31.
Section 31 of the act requires that in addition to the reason for dismissal being redundancy, Subsections 4 and 5 and 6 be complied with in respect of a dismissal for redundancy.
The above provisions require that where it is contemplated that the workforce of the business will be reduced by ten per cent or any other significant number, before dismissing an employee, the employer shall carry out consultations with the affected employees or their representative in accordance with the following requirements:
“(a) The consultations shall commence not later than six weeks before any of the affected employees is dismissed and shall be completed within a reasonable time;
(b) the consultations shall be in respect of
(i) the proposed method of selecting the employees who are to be dismissed;
(ii) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take place, and
(iii) any measures that the employer might be able to take to find alternative employment for those who are to be dismissed and to mitigate for them the adverse effects of the dismissals; and
(c) where, in any case, there are special circumstances which render it not reasonably practicable for the employer to comply with any of the requirements of paragraphs (a) and (b), the employer shall immediately consult with the Chief Labour Officer and take all such steps towards compliance with the requirement as are reasonably practicable in the circumstances.”
The employer is also required to supply the employee or the trade union recognized for the purposes of bargaining on behalf of the employee (if there is one) and the Chief Labour Officer with a written statement of the reasons for and other particulars of the dismissal.
It should be borne in mind that the Employment Rights Act “does not bind the Crown but applies to statutory corporations”. (see section 51 of the act)
Based on the provisions of the act, it is submitted that a dismissal for redundancy may be unfair for one or more of the following reasons:
(a) where there is no genuine redundancy situation;
(b) where the employer refuses or neglects to consult in the circumstances required by the act;
(c) where the employee was unfairly selected for dismissal;
(d) where the employer failed to provide alternative employment.
Of course, there may be circumstances in which it is not reasonably practical for the employer to comply with (b), (c) and (d); in those cases the employer must “immediately consult with the Chief Labour Officer and take such steps as are reasonably practical in the circumstances”.
Although not stated in the act, I assume that if it is found that no steps towards compliance are reasonably practical, the employer would have complied with the act and the dismissal would be fair.
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.