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Top tips on managing redundancy
The redundancy process is a stressful time for any business. Our legal partner, rradar, has put together some top tips to help you manage it. These tips are meant to highlight key aspects of the redundancy process and avoid common pitfalls. They are not everything you need to know about redundancy. A factsheet is available here.
1. Remember it is the job that is redundant
It is really important to remember that in a redundancy situation you are making job roles, not individuals, redundant. A redundancy situation will arise because you need to reduce the headcount in your company, not remove specific individuals. Any correspondence with employees should reinforce that. For example, you should state ‘your role is at risk of redundancy’, not ‘you are at risk of redundancy’. This means redundancy can’t be used to deal with poor performance or disciplinary issues.
2. Check if collective consultation is needed?
If you are proposing to dismiss fewer than 20 employees at any one establishment, there are no set rules to follow. However, if you are proposing to dismiss more than 20 employees at any one establishment in a 90-day period, you must carry out a collective consultation exercise.
As part of collective consultation, you must:
- Notify the Redundancy Payments Service RPS) within the right time frames, and before a consultation starts.
- Consult with trade union representatives, elected employee representatives ,or with staff directly.
Keep staff informed throughout the consultation. - Respond to any requests for further information.
- Give any affected staff termination notices showing the agreed leaving date.
- Issue redundancy notices once the consultation is complete.
3. Make sure selection criteria is lawful
You need to put selection criteria in place that will help you pick which individuals to keep in the roles that will remain in the company. These selection criteria’s must be lawful. They can include things like attendance record, work performance, skills and experience.
Selection criteria cannot include membership of a trade union, having taken part in trade union activities or having acted as an employee representative.
4. Look for suitable alternative work
Before dismissing someone by way of redundancy, you need to think about whether there is any suitable alternative role they can do in the company.
Things to think about when deciding if other work is suitable include:
Pay – wherever possible, an employee’s pay should be the same or higher.
Status – any loss of status in a different role may be eased by promising to prioritise the employee if their original job becomes available again.
Location – any increase in travel time should be weighed against the employee’s age, health and home life.
Working environment – is the new working environment safe if, for example, the employee has a physical disability or mental health condition?
Hours of work – changes in hours of work, such as shift patterns, need to take into account personal circumstances.
Temporary working – you keep the employee as a temporary worker until a permanent role is available.
5. Make sure you pay redundancy pay
If you do not pay redundancy pay or if an employee disagrees with the amount, the employee has 6 months less 1 day from the date their employment ended to make a claim for payment to an employment tribunal. If they are also claiming unfair dismissal or notice pay, they have 3 months less 1 day from the date their employment ended.
If you cannot afford to make redundancy payments or if you’re insolvent, you can ask the RPS for financial help or to make your redundancy payments and recover the debt from your assets.
Disclaimer: Please note that this article is for general guidance only and aims to provide general information on a relevant topic in a concise form. This article should not be regarded as legal advice in relation to a particular circumstance. Action should never be taken without obtaining specific legal advice.
This post was written by Nkolika Oraka, Employment Solicitor and Legal Manager from our expert legal partner rradar. If you need further assistance and individual guidance, please email our team: membership@fpb.org.
Extending Paternity Pay
This article from our legal partner, rradar, answers some common questions around Statutory Paternity Pay, addressing the current situation and the recent discussions about changes. A factsheet is available here.
1. Is an extension to Statutory Paternity Pay planned?
Recently, there have been discussions amongst professional organisations and charities about the state of parental leave, in particular paternity leave.
The consensus arising from these discussions is that the system is in need of reform; calls have been made for legislative action but so far, there has been no official announcement from the Government. However, the discussions have focussed attention on paternity leave and how it works.
2. What is the current position?
In the United Kingdom, the right to two weeks’ paid paternity leave was first introduced in April 2003.
Eligible employees can take either one week or two consecutive weeks’ leave after the baby is born. The leave must be taken in one go. It is worth noting that the amount of time off does not increase if they have more than one child, for example twins.
Paternity Leave cannot start before the baby is born and it must finish within 56 days of the birth (or due date if the baby is born early).
Statutory Paternity Pay
The current weekly pay rate (as of April 2022) for Statutory Paternity Pay (SPP) is £156.66 per week or 90% of the employee’s average weekly earnings (whichever is lower). This is subject to Income Tax and National Insurance in the usual way. This usually increases every April.
To be eligible for SPP, the employee must be one of the following:
- The baby’s biological father
- The husband or partner of the mother
- The child’s adopter
- The intended parent (e.g. if the baby is being born through surrogacy)
In order to qualify for SPP, the following criteria must also apply:
- The employee must have worked continuously for the employer for at least 26 weeks before the ‘qualifying week’
- The employee must earn at least £123 a week (gross) on average for 8 weeks before the qualifying week
- The ‘qualifying week’ is 15 weeks before the expected week of childbirth
It is worth noting that, in addition to paternity leave, parents can also take Shared Parental Leave and Pay. These additional rights were introduced in 2015 in an attempt to give more choice in how parents can care for their child.
Shared parental leave
This lasts for up to 50 weeks and Shared Parental Pay can be paid for up to 37 weeks.
These can be split between the parents and can be taken in one go, or in blocks, on a flexible basis. Shared Parental Pay is paid at the same rate as Statutory Maternity Pay and Statutory Paternity Pay – £156.66 a week or 90% of the employee’s average weekly earnings, whichever is lower.
Over and above
With the change in the work environment following the pandemic and what has been termed The Great Resignation, employers may be finding it hard to attract and retain the most talented employees. Therefore, offering enhanced benefits may well help with this. Family friendly benefits, over and above the statutory minimum, can help employers to stand out from the competition when potential recruits are surveying the latest vacancies.
As a case in point, in the very competitive financial recruitment sector, the accounting firm Grant Thornton UK, recently introduced a Paternity Policy of 6 weeks’ full pay, a massive increase over and above the statutory two weeks of paternity leave paid at £156.66 per week.
What remains to be seen however is whether other employers will follow suit, without the legal obligation to do so.
3. What does the future hold for parental leave?
Research by the law firm EMW, based on official HMRC figures in 2020, found that only 2% of couples took up the option of Shared Parental Leave. The maternity rights charity, Maternity Action, reported in July 2022 that 2.1% of couples used Shared Parental Leave.
These figures are evidence that the current system is not popular, with the take-up falling way short of the Government’s reported target of 25%. This has led to calls for the current system to be overhauled and for an enhancement to Statutory Paternity Leave and Pay to be made.
Recent research by the Chartered Institute of Personnel and Development (CIPD), the leading professional HR organisation in the UK, found that almost half of the employers surveyed said they would support extending statutory paternity leave and pay.
The Report recommends that the UK Government should enhance Statutory Paternity Leave to six weeks at or near the full rate of pay. Maternity Action has made similar recommendations. These recommendations have received coverage in the media, and this may be what has formed the incorrect impression that the Government is planning to take action.
The Governments position
In its 2019 Report ‘Good Work Plan: Proposals to support families’, the Government said: “Of the countries in the OECD, the UK offers employed pregnant women and new mothers the longest period of dedicated Maternity Leave but our dedicated offer for fathers is among the lowest.”
A number of European countries offer greatly enhanced paternity leave and pay compared to the United Kingdom. For example, Spain offers 16 weeks of paternity leave on full pay.
Whilst the Government acknowledges that UK paternity leave is low, it has no immediate plans to change the current statutory position.
Having said this, given the recent change in Prime Minister and the uncertainty on budgets, taxation and spending, only time will tell if this remains so. Employers are therefore advised to maintain a watchful eye on Government announcements.
If you are concerned about what the future may hold or indeed are looking to make changes to your current Paternity leave policy, ensure you get legal advice to guide you every step of the way.
Sources and further information
Employer Focus on Working Parents: Parental leave and pay and childcare policies. CIPD, August 2022.
Disclaimer: Please note that this article is for general guidance only and aims to provide general information on a relevant topic in a concise form. This article should not be regarded as legal advice in relation to a particular circumstance. Action should never be taken without obtaining specific legal advice.
This post was written by our expert legal partner rradar. If you need further assistance and individual guidance, please email our team: membership@fpb.org.
Managing sickness absence
This article from our legal partner, rradar, answers some common questions around employee sickness absence. It should be read alongside our guide to managing sickness absence, available to our members here.
Quick links:
1. What should a sickness absence procedure look like?
2. How long can an employee self-certify they are sick?
3. Can we see employee medical information?
4. How much is Statutory Sick Pay?
5. What if an employee disagrees with a fit note that says they can work?
6. Can employee return to work before the end of their fit note?
7. What can we do if we suspect an employee is faking being sick?
8. An employee is off sick a lot on Fridays and Mondays. What can we do?
9. What if an employee has long COVID?
10. What is a phased return to work?
11. Can we dismiss an employee who is too sick/medically unfit to return to their role?
12. What if an employee refuses to come back to work after a sickness absence?
13. How can I handle seasonal increases in sickness absence?
- The employee notifies a designated person they are unwell, such as HR or their line manager. Ideally, employees should:
- Notify the company they are unwell at least 1 hour before they are due to start work (this can be defined differently in your company policy).
- Speak to the designated person on the phone rather than by email. On the phone the employee can be asked about their condition and what work needs to be reallocated.
- If necessary, the employee supplies evidence that they are unwell.
- The company should keep in touch with the employee while they are off work the company should hold a return-to-work meeting when the employee is better and back working.
- The company should keep accurate records, preferably on a secure HR system.
2. How long can an employee self-certify they are sick?
For the first 7 days of a sickness absence, employees can self-certify. For absences lasting more than 7 days, you can ask to see a fit note from a doctor or a hospital.
3. Can we see employee medical information?
If you need to see employee medical information you can:
- Write to their GP to ask for a medical report on the employee’s condition. However, you will need the employee’s consent for the GP to share that report with you refer the employee for an occupational health assessment and read the report that follows.
- Ask the employee to undergo a medical examination.
4. How much is Statutory Sick Pay?
£99.35 per week. Statutory Sick Pay is:
- Payable for up to 28 weeks.
- Payable from day 4 of the sickness. You don’t have to pay Statutory Sick Pay for the first 3 days of sickness absence, except when it’s for self-isolation for COVID-19.
- Paid in the same way as normal wages.
- However, if an employee is sick you can choose to pay them their full salary. Statutory Sick Pay is mandatory, but contractual sick pay is an option.
5. What if an employee disagrees with a fit note that says they can work?
You should meet with the employee and:
- Find out why the employee thinks they are unable to return to work. Be tactful and sympathetic. The employee may have a genuine reason for their belief.
- Explain what support the company can offer to help the employee return to work
- Explain the impact being off work sick will have on their pay. Will statutory or contractual sick pay apply?
You may need to consider action under the company disciplinary procedure if:
- You have made every reasonable effort to support the employee’s return.
- The medical evidence is clear they can return.
7. What can we do if we suspect an employee is faking being sick?
You should use the company disciplinary procedure to manage a situation where an employee might be lying about being sick.
8. An employee is off sick a lot on Fridays and Mondays. What can we do?
When someone has a few days off at regular intervals this is known as persistent intermittent absences. If you suspect these absences are not genuine sickness absences, you should follow the company disciplinary procedure.
9. What if an employee has long COVID?
If an employee is too ill to work because they have COVID-19 or Long COVID, this should be treated as any other sickness absence.
From day 4 of a COVID-related sickness absence, employees are entitled to Statutory Sick Pay.
10. What is a phased return to work?
Phased returns to work are often used where an employee is not well enough to return to work full-time or do all their duties. However, they can carry out some work.
A phased return to work may be recommended:
- by the employee or the company
- on a fit note from a doctor
- in an occupational health assessment report
- in medical report commissioned by the
employer.
11. Can we dismiss an employee who is too sick/medically unfit to return to their role?
Yes. However, you must make sure you follow the correct medical capability process to avoid a successful claim for unfair dismissal at an employment tribunal.
Capability dismissal is fact dependent. The fairness of such dismissals is judged on a case-by-case basis.
Therefore, the best solution is to call the Forum member helpline on 01565 626001.
12. What if an employee refuses to come back to work after a sickness absence?
If an employee refuses to come back to work, you will need to consider the reasons why. If they are still medically unwell, you should handle it through the medical capability process. If they are medically fit, you should handle it through the disciplinary process.
13. How can I handle seasonal increases in sickness absence?
To manage a situation where lots of people are off work at once because, for example, there is a seasonal bug, you might consider the following to meet workload demands:
- Hiring temporary/agency workers.
- Offering overtime.
- Offering employees time off in lieu (TOIL) to work extra hours.
You might be able to reduce the impact of seasonable absences by:
- Offering free flu vaccinations.
- Allowing employees to work from home more if colleagues become unwell.
- Enhancing cleaning practices in the office.
14. Where can I get more information?
You can download a factsheet with this information here. If you still have a question, please also read our guide to sickness and absence or call the Forum member helpline on 01565 626001.
Disclaimer: Please note that this article is for general guidance only and aims to provide general information on a relevant topic in a concise form. This article should not be regarded as legal advice in relation to a particular circumstance. Action should never be taken without obtaining specific legal advice.
This post was written by our expert legal partner rradar. If you need further assistance and individual guidance, please email our team: membership@fpb.org.
Employment Guide 2024
Running a business can be incredibly rewarding but there are also many challenges involved. Along with increasing economic pressures for employers there’s also a huge amount of complicated administrative, legal and regulatory information to be understood and implemented.
Any shortcomings in a company’s operations may cause serious and costly problems further on down the line. So, having the right information at the right time can be literally crucial to a business’s chance of success.
The Forum of Private Business Employment Guide 2024 is a detailed examination of the procedures, policies and practices that every employer needs to put in place.
Divided into 8 sections the guide covers all aspects of hiring, firing and managing employees:
- Recruitment
- The Contract of Employment
- Managing people
- Managing relationships
- Equality
- Discipline and grievance
- Redundancy and dismissal
- Post employment
Regularly reviewed by our legal partner, rradar, this guide is an essential resource for all businesses.
The Employment Guide 2024 is available to members and non members – although we strongly recommend buying the guide with Forum membership to be able to benefit from the legal advice and templates available with membership.
To order your copy today, please contact our helpline on 01565 626001.
