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Redundancies, 'I

30th May 1981, Page 94
30th May 1981
Page 94
Page 94, 30th May 1981 — Redundancies, 'I
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Which of the following most accurately describes the problem?

by Douglas Ainley

PART IV of the 1975 Employment Protection Act makes it mandatory for employers who are proposing to dismiss employees as redundant to consult with the trade union recognised in respect of that description of employee.

The Act specifies certain time scales for advance consultation according to numbers involved and employers in default may become liable for a "protective award."

Initially, the crucial point is that the union must be recognised by the employer for the purposes of collective bargaining which requires some negotiations on any one of the following matters: terms and conditions of employment; dismissals; discipline; union membership; work allocation; facilities for union officials; or machinery for consultation or negotiation.

Without such "recognition" there is no obligation to consult.

Recognition requires mutuality and some agreement by the employer. Agreement may also be implied from the facts, but this needs clear and unequivocal evidence of the employer's actions over a period of time.

If the employer has regular meetings with union officials to discuss wages and other terms and conditions, and allows union officials to collect dues on his premises and use company notice-boards, recognition may be implied.

But sporadic contact on isolated issues of dismissal or discipline will probably not suffice. The burden of proving recognition rests on the union — but the longer an employer maintains regular contacts with union officials, the easier it becomes to imply recognition.

That an employer belongs to an employers' association which recognises a union — RHA and TGWU for example — does not in itself mean that the individual employer recognises it. This is so even if the employer observes JIC rates and conditions.

Where an employer nego

tiates with a union on any one of the matters specified above, this suffices for "recognition". So, if you have merely agreed on consultation or representation machinery with the TGWU, this partial recognition entitles the union to consultation.

A recognised union is entitled to advance consultation where the proposed redundancies are among its members. It is irrelevant whether the employee(s) concerned qualify for a statutory redundancy payment or whether they are part-timers — consultation is still required.

Nor does it matter where a union is recognised for a particular group of workers that the individuals to be made redundant from that group are not union members. If the URTU represents your drivers but not all drivers belong and you propose to make the non-unionists redundant, you must still consult the URTU.

However, that a union is recognised for one description of employee (eg drivers) does not entitle it to consultations relating to proposed redundancies amongst another group of workers.

Employers must consult only when they are proposing to make redundancies. The test is subjective; it is not for tribunals to decide when the employer should have seen the need for redundancies. The employer must have decided that redundancies are necessary and have a provisional idea of the numbers involved. He should have specific details available so that consultations with the union have some meaning. Employers need not consult where only a mere possibility of redundancies exists.

However, the questions whether the employer's plans amount to dismissal and whether dismissal is by reason of redundancy are objective matters of law. So an employer proposing to sell his business as a going concern is thereby proposing to dismiss his employees as redundant and must consult any union involved.

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