The breadth of our collective experience encompasses advising FTSE 100 companies, US owned global companies, charities and owner-managed businesses.
Case study 1
large scale redundancy programme
We were asked by a multi-national corporate client to undertake a large scale redundancy programme due to a drop in sales. The client had around 3,500 employees and needed to reduce that figure by around 800 employees. A trade union represented the workforce which was unused to change programmes of such a scale. We supported the client though the duration of the process at the very early stages with strategic planning, in the launch of the consultation and the associated publicity and employee communications, during the consultation process itself and also in concluding the process without any resulting Employment Tribunal claims or ongoing issues.
While a large exercise, the principles we applied in supporting this client and the approach they took are applicable to redundancy exercises of all sizes. Some of the key points we learned and which we felt were overall of benefit in the process were:
- Plan, plan and plan some more.
- Once you have a plan, engage with the workforce as soon as you can. A balance has to be struck between announcing change that has not yet been properly planned (a bad idea) and announcing change as a proposal that has been planned, but is not yet set in stone (a good idea).
- Establish the communication channels and stick to them whether via a Trade Union, employee representatives of the employees themselves.
- Create Q&A documents, briefing notes and guides and ensure they are freely available.
- Record in writing your rationale for assessing employees and be prepared to share this.
- Keep an open mind about suggestions made by the workforce to avoid redundancy. There are few bad ideas, just ideas that need to be explored, assessed and (if appropriate) declined. Any ideas that are declined need to be supported with worked up reasons.
- As early as you can, propose the redundancy pay terms and the possible redundancy date. We find that at risk employees are (understandably) initially focused on the ‘when’ and the ‘how much’. Once some guidance is given here, we find that employees are more able to focus on the wider consultation.
- Don’t fill vacant roles with external candidates during a redundancy consultation. Open these up to the ‘at risk’ population and do all you can to retain people. This is true even if you have to offer a trial or flex terms to accommodate personal circumstances.
- Consider other businesses that may be recruiting and approach them to establish whether they will consider taking on any redundant employees. In larger exercises consider a jobs fair, and any related support you may be able to secure from local government.
- Make sure all redundant employees have a right of appeal and are kept in the loop for any new roles that are subsequently created.
Case study 2
Through our links with an international tax adviser, we were asked to advise an established overseas company on how it could import its knowledge into its fledgling UK business. It wished to bring over key employees from the parent company as a starting point to gain a foothold in the UK market and it had identified a key overseas employee needed for an additional role.
The list of matters to be dealt with included:
- We would need to apply for a sponsorship licence, which is often a challenge with a start up business which, whilst being established overseas, had not been trading that long in the UK. As most employers will probably know, the UK’s immigration rules are constantly being changed and updated to protect the UK’s borders, at the same time as encouraging foreign investment, a hot topic for the UK.
- What would be the appropriate visas for the employees into the UK?
- Can the Company demonstrate that there was nobody in the UK capable of carrying out one of the roles?
- Can the Company show that it can comply with its sponsorship duties?
The key words for this process are: forward planning, organisation and above all, patience! The sponsorship licence application process is a heavily administrative and prescribed process and ensuring everything is in place is something that takes far longer than you would think! As regards the individual workers, we had to explore with those already employed by the parent company what their short and long term plans were. Might they want to settle in the UK? Were they bringing their families with them? Were there going to be issues with their travel history? Aside from the sponsorship route, were there other options such as ancestry visas?
For the Company to be able to employ the key resource, our work included advising on the need for a resident market labour test which is the need to advertise the role in a very specific way to ensure that there was nobody in the UK who was able to do that job. This needed a careful and detailed exploration of the role that was actually needed, highlighting particular areas of expertise which were critical to the business. Without forward planning however, this is one area that is frustrating to employers as the test needs to be completed before the visa application is made – and it takes time.
Once the workers are in the UK, the Company needs to be able to demonstrate that it is complying with its sponsorship duties, which is all about having systems in place to track and monitor migrant workers. The Home Office can drop in unannounced to check that all is well, so it is essential that employers are compliant. Compliance failures will lead to the sponsorship licence being revoked, meaning that any migrant workers can no longer be employed.
Case study 3
We were asked to support a pan-European manufacturing company to defend an employment tribunal claim for unfair dismissal and whistleblowing brought by a former employee. The former employee claimed that his dismissal was as a result of him making a complaint about health and safety on the production line. The employer said that the Employee had not performed well enough in his role to pass his probationary period.
We took over complete management of the case and helped our client to gather the evidence they needed to show the real reason for dismissal. We also interviewed witnesses and drafted witness statements, liaised with ACAS over a possible settlement and prepared the hearing bundles for trial. The former employee represented himself and had unrealistic settlement expectations which meant the case progress to a final tribunal hearing. We secured a unanimous victory with the Employment Judge agreeing that the former employee had not raised any health and safety complaints, and that the real reason for his dismissal was due to poor performance resulting in a failed probationary period.
Although our client avoided any findings against them and were not criticised by the tribunal some of the key points arising from this case were:
- Short service employees may try to be more creative with the claims they pursue if they can no longer claim ‘ordinary’ unfair dismissal.
- The value of still running a fair dismissal process with short service employees is that it reduces the chances of a discrimination or whistleblowing claim and makes those types of claim less likely to succeed.
- Having good evidence of decisions made and the reasons for those decisions is essential if you need to justify your actions to an employment tribunal.
- Make sure poor performance is addressed properly – informally at first and then escalated to a formal process if required.
- Keep a clear record of the steps you take to deal with performance issues, set realistic targets for the employee to achieve and actively manage the situation.
- No matter how sensible your approach is to settlement you may come up against someone with unreasonable expectations so be prepared to fight the claim.
- Taking a robust approach to defending a claim and having someone on your side who understands the tribunal process will save time, expense and reduce the chances of a finding against you.