NGCAA legal advice: Redundancy (part two)

In the second of two parts looking at how golf club employers should tackle this issue, the NGCAA offers guidance for the redundancy procedure.

Part one can be found here.

Please note that the guidance contained in this document is for a situation where the employer is proposing to dismiss fewer than 20 employees as redundant in any 90-day period and the employee(s) have more than two years of service.

Redundancy procedure

If considering a dismissal due to redundancy, an employer must follow a fair procedure and make dismissal decisions that are fair and reasonable in the circumstances. In practice, acting reasonably means an employer must follow the minimum ‘procedural fairness’ requirements:

• Warning and consulting employees about the proposed redundancy; and

• Adopting a fair basis on which to select for redundancy by identifying an appropriate pool from which to select potentially redundant employees and selecting against proper criteria; and

• Considering suitable alternative employment by searching for and, if it is available, offering suitable alternative employment within the organisation.
The following steps should be followed by the club in any potential redundancy situation.

Consider options for avoiding redundancies

The club should start by considering if there might be any way to avoid the redundancy of staff. This might include reducing headcount by asking for voluntary redundancies, a recruitment freeze, withdrawing new job offers, deferring new joiners, reducing agency staff, redeployment or secondment of staff, or early retirement.

Warn and consult employees about the proposed redundancy

If redundancies are proposed, consultation with individual employees is fundamental to the fairness of any dismissal for redundancy. This note only covers redundancy exercises where fewer than 20 employees are to be made redundant. If the club proposes to dismiss as redundant 20 or more employees at one establishment within a 90-day period (which might include multiple sites), it would have to engage in collective consultation with a trade union or (if no union is recognised) elected employee representatives. In the event this might apply, please contact the NGCAA for advice.

The club must consult with individual employees about the possibility of redundancy. Fair consultation with individual employees includes:

• Consultation when the proposals are still at a formative stage – therefore the club should have an open mind and still be capable of influence about the matters which form the subject matter of consultation, with no decision made until the end of the process;

• Adequate information on which to respond – the employee should be given all relevant information;

• Adequate time in which to respond – the employee should have sufficient time to consider matters and respond; and

• Conscientious consideration of the response to the consultation – the club should carefully consider what the employee says and properly respond.

The matters that should be discussed during the individual consultation process usually include the following:

• An opportunity for the employee to comment on the basis for selection, both in terms of the pool and the selection criteria (where applicable);

• An opportunity for the employee to challenge their redundancy selection assessment and to explain any factors that might have led to their selection;

• An opportunity for the employee to put forward any suggestions for ways to avoid their redundancy;

• Consideration of any alternative employment positions that may exist; and

• An opportunity for the employee to address any other matters or concerns that they may have.

Adopt a fair basis on which to select for redundancy

The club must identify an appropriate and reasonable pool from which to select potentially redundant employees. A pool may include a number of people with the same role / duties or may be a pool of one, for example, where a golf club steward is the only employee carrying out that role.

Factors to consider when identifying a pool are what type of work is ceasing or diminishing and the extent to which employees are doing similar work and to which employees’ jobs are interchangeable. Therefore, in some cases the selection pool may be quite obvious, but where there are employees with overlapping or interchangeable duties, then careful consideration will be needed to establish the appropriate selection pool.

After a selection pool has been identified, proper and reasonable criteria must be applied to the individuals in the pool. The selection criteria should, as far as possible, be both objective and capable of independent verification, that is, capable of being measured with reference to records / evidence. Potentially fair selection criteria include matters such as performance and ability factors, length of service, attendance records and disciplinary records. Where such records / evidence do not exist, the club will have to do its best to measure employees, and the club may want to involve more than one manager in the process and for there to be evidence of the reasoning applied, such as notes made against scoring sheets.

Consider suitable alternative employment

An employer must search for and, if it is available, offer suitable alternative employment within its organisation. Employees should be provided with sufficient information about any vacancies so that they are able to take an informed view as to whether the position is suitable for them. Assumptions should not be made by the club on the suitability of a role because it has reduced status or salary. The club should make sure employees at risk of redundancy have details of all current vacancies.

The club is not obliged to create alternative employment for redundant employees where none already exists. However, the club should make sure that it undertakes a sufficiently thorough search for alternative employment and that the search is documented (in case it is necessary to produce evidence to defend an unfair dismissal claim).

When dealing with more than one potentially redundant employee, the club should ensure that all potentially redundant employees are made aware of any vacancies and consider how it will choose to which employees it will offer alternative employment.

There is a statutory scheme which relates to the offer of suitable alternative employment and the giving of a statutory trial period. Not all roles will be a suitable alternative within the statutory scheme and advice should be taken regarding whether the scheme might apply. If the offer of suitable alternative employment does fall under the scheme, the following applies:

• The employee’s contract of employment will not come to an end if the club offers either to renew their contract (renewal) or to re-engage them under a new contract (re-engagement), whether with the employer or an associated employer;

• Where the employee unreasonably rejects an offer of suitable alternative employment, they will forfeit their right to a redundancy payment; and

• Where suitable alternative employment is offered, it is subject to a trial period if the terms of the new employment differ in any respect from the employee’s existing terms. The trial period gives an employer the opportunity to try out the employee in the new alternative employment and gives the employee the opportunity to try out the new employment for themselves.

If a club is considering dismissals by reason of redundancy, or would like advice on any other legal matter, please contact Alistair Smith of the NGCAA on 01886812943 or office@ngcaa.co.uk