This document discusses redundancy, restructuring, and reorganization ("the 3 Rs"). It covers the different types of redundancy, what restructuring and reorganization mean, the need for consultation, fair selection processes, considering alternatives, and managing changes to roles and terms. Key aspects include having clear business rationales, transparency, allowing input and appeals, and handling processes reasonably given the circumstances. The presenters provide an overview of the relevant employment law around the 3 Rs.

1. Breakfast Workshop – The 3 Rs –
Redundancy, Restructuring &
Reorganisation
Peter Stevens, Nicola Brown & Anna Rabone

2. The 3 Rs – Redundancy
3 types of redundancy:
1. Closure of a business
2. Closure of part of a business
3. A diminished need for employees to
carry out work of a particular kind

3. The 3 Rs – Restructure and
Reorganisation
• What do we mean by restructure and
reorganisation?
• Changes to the organisational structure or
to roles within an organisation
• May or may not involve a loss of headcount

4. Overlap between the 3 Rs
• Packman v Fauchon (2012) - not
necessary to have a reduction in headcount
in order for there to be a redundancy
• Do the proposed changes go to the heart of
the job?

5. Consultation & Communication
• Vital part of a fair process in any situation
involving the 3 Rs
• Special rules for collective redundancies:
• 30 days if 20 or more within 90 days
• 90 days if 100 or more within 90 days –
(from 6 April 2013 it will be 45 days)
• Special rules for TUPE transfers and where
collective agreements are in place

6. Consultation & Communication
• Even where collective consultation is
required, communication and consultation
on an individual level is still key
• Explain the business rationale
• What does consultation mean?
• No set process - all about reasonableness
• Size and administrative resources

7. Selection
• How do you determine which role(s) are at
risk, or who will be suitable for any newly
created roles?
• Pools for selection
• Can you have a pool of one?
• Halpin v Sandpiper (2012)
• Capita Hartshead v Byard (2012)

8. Selection from a pool
• Who goes in the pool?
• Employer‟s decision as to criteria and
scoring (e.g. weighting etc) (Samsung v
Monte-D’Cruz (2012))
• But – best to get employees‟ input on the
proposed criteria before selecting
• Who should carry out the selection?

9. Selection - examples
Disciplinary Length of Absence
record service record
Appraisal Competency
Attitude?
scores assessments
Qualifications Interview Flexibility

10. Alternatives
• A fair process involves considering
alternatives to redundancy or reorganisation
• Listen to suggestions and respond – no
obligation to agree
• Will be unfair if suitable alternative
employment exists and the employee is not
given an opportunity to apply
• Maternity leave „trump card‟

11. Suitable alternative employment
• An employee will not be entitled to a
redundancy payment if they unreasonably
refuse a suitable alternative role
• What does ‘suitable’ mean? – Objective
test
• What does ‘unreasonable refusal’ mean?
–Subjective test

12. Alternative employment
• Best practice – give the employee a
complete list of all vacancies in the
organisation
• Let them decide if they wish to express an
interest
• Specifically point out roles for which they
are suitable
• Red-circling?

13. Trial periods
• Where a redundant employee accepts
another role (whether a „suitable alternative‟
or not)
• Statutory trial period of 4 weeks
• Can agree a longer period
• Rules regarding notice – tricky area

14. Timing and process
• Individual consultation – we recommend a
minimum of 2 weeks
• Explain your planned process at the outset
• Ask for volunteers?
• “At risk” – but advise them of what their
entitlements would be
• Right to be accompanied?

15. Timing and process
• Paper trail – including written invitations to
meetings, meeting notes etc.
• Where redundancy selection is involved,
need to give opportunity to comment on the
provisional selection as well as on the
situation generally
• Ensure that those who aren‟t selected are
made aware that the selection is subject to
appeal

16. Right of appeal
• A key part of any dismissal process involving
the 3 Rs
• Ensure that someone with sufficient
seniority within the organisation has been
kept out of the process to enable them to be
sufficiently independent
• Written confirmation of outcome

17. Restructure and Reorganisation
– changing roles/terms
• Ideally changes are made by agreement
• If agreement cannot be reached –
potentially fair reason for dismissal (“some
other substantial reason”)
• Process is very important

18. Restructure and Reorganisation
– changing roles/terms
• Explain the proposed changes and the
reasons for them
• Give the employees an opportunity to
comment and deal with any points raised

19. Restructure and Reorganisation
– changing roles/terms
• The length of consultation may depend on
the significance of the proposed changes
• Note that statutory consultation may apply

20. Restructure and Reorganisation
– changing roles/terms
• If agreement is not reached by the end of
consultation:
• Dismiss and offer re-engagement
• Impose the change
• Risks and benefits of both approaches
• Will there be a redundancy payment?

21. Scenario for discussion

22. Breakfast Workshop – The 3 Rs –
Redundancy, Restructuring &
Reorganisation
Peter Stevens, Nicola Brown & Anna Rabone