A a variation in contract needs to be

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A summary of the major ways the law protects employees
during reorganisation

 

Understanding the law in relation to
reorganisation and the methods and procedures that need to be used, but must be
seen to be carried out fairly and lawfully.

 

Varying a contract of employment

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In a situation where an organisation may wish
to relocate some of its staff to another site, due to a site closure/
relocation of business then a variation in contract needs to be discussed. The
first step is to make contact with all employees affected in the hope to come
to an agreement – if all staff are happy to accept, a new agreement will be
drawn up.

 

The Trade Union and Labour Relations
(Consolidation) Act 1992 provides information that representatives should
receive in writing from the employer for consultation to commence. Details of
this will include the reasons for this. All information provided to employees
must be adequate and the agreed selection process followed.

 

Consultation during a varying of contract is
crucial for it to be seen as fair and should last for a specified time,
depending on the amount of employees involved:

 

·        
20
or less employees – no time limit

·        
20-99
employees – at least 30 days

·        
100+
employees – at least 45 days

Consultation should be carried out within the
above specified times, explaining the reasons for the changes and discuss any
concerns employees may have.

 

If an agreement over the changes cannot be
made, the employer has three options available to them. The first is to go ahead
and make the changes, however this can leave them open to cases of constructive
dismissal if the employee resigns claiming breach of contract. The second is to
dismiss staff and rehire them on the new terms and conditions, but again this
can result in employees bringing unfair dismissal claims against the employer,
or the third would be to stop all changes.

 

To cover themselves when anticipating change,
employers include mobility clauses into contracts of employment. However, if
the change is not seen as ‘reasonable’ then the employee may be able to claim
unlawful variation of the contract. As illustrated with the United Bank v
Akhtar (1989) case, an employee was provided with a 6 day notice period to
relocate from Leeds to Birmingham. This move was protested due to the short
notice and as a result, a claim of constructive dismissal was ruled in his
favour by the courts as a breach of the contract.

 

Redundancy

 

Redundancy situations occur when an employer
needs to reduce its staff numbers due to economic reasons. Particular requirements
must be followed by the employer to avoid claims of unfair dismissal. The law protects
the rights of all those employees with at least two years’ service, providing
them with the right to receive compensation if a dismissal occurs.  The amount will vary depending on various
different factors.

 

Criteria used to decide what individuals are
at risk of redundancy must be objective, providing a clear view of a fair
selection process, free from any discriminatory factors. All those individuals
considered for redundancy must then be notified in writing and invited to a
meeting to discuss.

 

The law also permits all employees with at
least two years’ service; time off to look for alternative employment.

 

TUPE

 

The Transfer of Undertaking (Protection of
Employment) Regulations 2006 main requirement is to provide security during the
transfer stage to employees in situations when an organisation sells all or
part of its business. The security applies to the entitlement of employees
transferring over on the same terms and conditions as before and continuing
their employment from one employer to another.

 

During a TUPE situation employers are again
required to consult with employees regarding the transfer within a reasonable
timeframe and advised on when the transfer is likely to happen and the reasons
for this. Consultation over possible implications for the employee must be
discussed, along with the measures the new employer expects to take in relation
to employees. If the consultation process is insufficient and lacking clarity,
an employee can be granted a protective award by the Employment Tribunal of up
to 13 weeks’ pay.

 

 

Categories: Trade

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