Would you be within your rights to merge a management role with that of a junior member of staff to save on salary costs? Andrew Forrest reports
THE PROBLEM A member of our management team took three months sickness absence late last year and we found that her junior manages the workload fine without her. On her return we plan to merge her role with that of her junior and make her redundant - a move that will greatly help us reduce our wage expenditure. Are we within our rights and are there any procedures we should follow?
THE LAW The absence of an employee from work can often highlight to an employer that a particular department is overstaffed, and prompt them to look at ways of reducing the number of employees. Such situations can give rise to a potential redundancy situation, as effectively the employer has a reduced need for employees to undertake work of a particular kind.
Redundancy is a potentially legitimate reason for the dismissal of an employee. However, it is essential that it is carried out in a fair and reasonable manner, ensuring that the correct procedure is followed. Failure to follow the correct process can be a costly error.
There are a number of key aspects to a fair redundancy procedure to consider. Initially, the employer must consider what differences there are in the roles undertaken by the two managers. If their roles are actually very similar, then they will form a pool and the employer will be required to undertake an appropriate selection process, scoring each employee against objective selection criteria before provisionally selecting one of the two for redundancy.
If the two roles are very different, then the employer may be able to avoid the need for a selection pool, and it will be easier for them to decide which individual should be made redundant.
The employer will need to ensure that they undertake full and fair consultation with the affected employees, including gathering their input about the proposed selection criteria and getting their views about any alternatives for redundancy. The scoring against the criteria should then be undertaken by two managers who have knowledge of the individuals.
There will then follow detailed consultation with the employee provisionally identified as being redundant about their selection, their scoring against the criteria and any possibilities that might exist within the organisation as regards suitable alternative employment.
If the employer is only looking at a single redundancy, then there will be no obligation to consult with any trade unions or employee representatives, and there is not a fixed period for the individual consultation, it simply must be what is reasonable in the circumstances.
Once consultation has been completed, then in the absence of any suitable alternative roles, the redundancy can be confirmed to the employee who will be entitled to statutory redundancy pay, if they have completed two years or more service, and notice.
EXPERT ADVICE As with many situations, it will be important for the employer to properly plan how they intend to deal with the situation to ensure that a fair and reasonable process has been followed.
In addition, any manager involved in the selection and consultation process should receive training to ensure that they are aware of their legal obligations and are confident about the steps that they need to take in the consultation with the employees.
CHECK LIST The employer needs to:
â- Decide upon the appropriate procedure.
â- Train the relevant managers implementing the plan.
â- Draw up objective selection criteria.
â- Undertake full and thorough consultation.
â- Consider possible alternative roles.
BEWARE! The employer would be very ill advised to choose to make the employee redundant who has been off sick simply because of their absence from work. Not only would that be likely to result in a claim of unfair dismissal, but this could also depend upon whether the nature of the health problems that the employee had could lead to allegations of disability discrimination - such claims attract unlimited compensation.
Andrew Forrest is an associate at law firm Weightmansandrew.email@example.com