THE KEMNAL ACADEMIES TRUST REDUNDANCY POLICY

Transcription

1 1 st September 2012 THE KEMNAL ACADEMIES TRUST REDUNDANCY POLICY Effective Date 1 st SEPTEMBER 2012 V2_ Page 1 of 24

2 1 st April 2012 Summary of Procedure Procedural Stage Action By 1-3 Establish that a potential redundancy situation exists Local Governing Body 4 Notify TKAT Operations Executive Head Teacher 5 Notify Trade Union Representatives 6 Consider and implement all possible avoidance measures including the consideration of volunteers and provide support for staff 7 Consult meaningfully with Trade Unions and employees Head Teacher and Redundancy Committee Head Teacher and Redundancy Committee 8 Meet with staff to provide an update on the process Head Teacher and Redundancy 9 Carry out objective selection process, write to each individual employee concerned and convene a meeting to consider representations Committee Head Teacher and Redundancy Committee Following the initial dismissal decision, issue contractual/statutory notice terminating the employment. Continue support for affected employee(s). Local Governing Body 15 Hear any appeals against selection recommendations Confirm final decision to employee(s) Appeals Committee Notes It is the policy of the Kemnal Academies Trust (TKAT) to ensure, as far as possible, security of employment for its employees by careful forward planning. Redundancy will not be used as a shortterm solution which is inconsistent with longer-term aims. It is recognised that changes may affect staffing needs but TKAT and the recognised trade unions agree to work together to safeguard employees and the quality of teaching and learning. TKAT will keep trade unions informed as fully as possible about staffing requirement and any need for redundancies. TKAT will seek voluntary redundancy (including early retirement) as a preferred option. It is important to recognise that a great deal of planning is required to achieve staffing reductions through redundancy in Academies legally and fairly. In addition to proper consideration and counselling for employees, the contractual/statutory notice periods for staff must be taken into account if the Local Governing Body needs to achieve the reductions by a specific date. V2_ Page 2 of 24

3 1 st April 2012 Consideration shall also be given to the timing of appeals. No appeal shall take place before notice of termination of employment has been given to the employee but the appeal may take place during the notice period. Depending on the complexity of the consultation process, the time required to complete the process can be anything from 8-14 working weeks plus a Notice Period of up to 12 weeks depending on the individual s contract of employment and length of service. V2_ Page 3 of 24

4 1 st April IDENTIFY THE EXISTENCE OF A REDUNDANCY SITUATION 1.1 Definition of a Redundancy Situation Section 139 of the Employment Rights Act 1996 states that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that The employer ceases or intends to cease to carry on the business for the purposes of which the employee is employed by him, or has ceased or intends to cease to carry on the business in the place where the employee was so employed OR The requirements of the business for employees to carry out work of a particular kind have ceased or diminished, or are expected to do so OR The requirements of the business for employees to carry out work of a particular kind in the place where the employee is employed have ceased or diminished or are expected to do so. In order for a dismissal due to redundancy to be fair, one or more of the above reasons must apply. 1.2 Responsibilities of Local Governing Bodies The Kemnal Academies Trust (TKAT, the Trust, the Company), Company Number , whose Registered Office is at Kemnal Technology College, Sevenoaks Way, Sidcup,Kent DA14 5AA is the legal employer of all staff employed to work in the TKAT Academies and Operations Executive (OE) References in this document to the LGB of an Academy shall be taken also as referring to the Chief Operations Officer of the TKAT OE In accordance with the School Standards and Framework Act 1998 and the Scheme of Delegation (the Scheme) between the TKAT Board of Directors and the Local Governing Body (LGB) of each Academy, the LGB has powers to appoint and dismiss staff. However, there are responsibilities associated with these powers and this procedure sets out these responsibilities with a recommended procedure for exercising them legally and fairly in respect of redundancy and redeployment The LGB has a duty to ensure that redundancy is not used as an expedient to resolve issues of capability. Separate procedures apply to ensure that staff performance is properly managed and that employees receive appropriate support and development A decision by a Local Governing Body to make staffing reductions usually has a huge effect on employee morale and this must be reflected in sensitive handling of the process, as well as the period following redundancy. V2_ Page 4 of 24

5 1 st April RATIONALE 2.1 The rationale is a written document presented to the LGB, the Trade Union representatives and the employee outlining the reasons why the potential redundancy situation has occurred and detailing all the relevant background information relating to the Academy. 2.2 The rationale shall include the following Reasons for the Proposed Redundancy Curriculum, restructuring, fall in pupil numbers, budget OFSTED recommendations (if appropriate and available) Organisational, pastoral needs of Academy Academy Roll Total pupil roll for last 5 years Anticipated roll for next 2/3 years and forecast of the impact on budget and any future plans for the Academy Academy Structure Staff structures current and proposed Class sizes (Primary only) Budget Information Total savings that need to be made and why 3 years budget (previous year, current year and next year s projections) Evidence that savings that cannot be made elsewhere (ie not staff related), where possible List of Staff Affected by the Proposals DOB (advised to LGB members and Unions only) Contract Type Salary Scale Job title V2_ Page 5 of 24

6 1 st April REDUNDANCY AND APPEAL COMMITTEES 3.1 Following the presentation of the rationale to the LGB and provided they are satisfied that no other reasonable alternatives exist, the LGB shall instruct the Head Teacher to commence early consultation with recognised Trade Unions and staff on a potential redundancy situation. 3.2 The LGB shall also establish a Redundancy Committee which will have delegated responsibility to consult formally with Trade Unions and carry out any redundancy selection with advice from the Head Teacher and an HR advisor. 3.3 The Redundancy Committee shall comprise three Governors (not including any staff Governors) having no personal knowledge of the staff affected by the proposals, a member of the Academy Senior Leadership Team and an HR advisor. 3.4 Simultaneously, an Appeals Committee shall be established comprising three Governors (not including any staff Governors) having no personal knowledge of the staff affected by the proposals and who are not members of the Redundancy Committee. They shall then take no further part in any discussion pertaining to the redundancies prior to the dismissal of staff so that appeals against dismissal can be heard without prejudice. 3.5 In the event that there are insufficient Governors meeting the criteria in sections 3.3 and 3.4 above to form either the Redundancy Committee or the Appeal Committee, Governors from any other TKAT Academy may be co-opted. V2_ Page 6 of 24

7 1 st April REQUIREMENT OF THE LGB TO NOTIFY THE TKAT BOARD 4.1 As soon as the LGB has identified a possible redundancy situation within the Academy, the LGB shall advise the Director HR of the TKAT Operations Executive. 4.2 The Director HR will appoint an HR advisor to the Academy Redundancy Committee. 4.3 The TKAT Board may appoint a Governor (including the Head Teacher) of any Academy or a member of the TKAT OE staff to any Redundancy or Appeal Committee as it sees fit. V2_ Page 7 of 24

8 1 st April AVOIDANCE OF REDUNDANCY 5.1 General Principles The LGB is legally obliged to consult meaningfully on measures to avoid redundancy. All of these measures should be considered before and throughout the process and it should be noted in particular that there is a legal obligation on the LGB to make reasonable efforts to find suitable alternative employment within the Academy or within any other TKAT Academy In order to reduce the redundancy situation within the Academy, the following Measures shall be implemented where appropriate across the Academy Restrict recruitment Reduce overtime End short-term contracts Internal organisation (restructuring) Natural wastage Retraining & suitability for redeployment Secondments Support for employees affected by the proposals to find suitable alternative employment Deferred voluntary redundancy ( bumping ) within school Redeployment and bumping within other TKAT schools Recruitment freeze (where appropriate) and filling vacancies from existing staff. V2_ Page 8 of 24

9 1 st April CONSULTATION 6.1 General Principles The Trade Unions and Labour Relations (Consolidation) Act Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 identify the regulations relating to consultation during a redundancy process Regardless of the numbers of potential redundancies and insofar as it is reasonably possible to do so, consultation with Trade Unions should precede and decision to terminate employment on the grounds of redundancy and shall include reasonable notice of consultation meetings be at the earliest opportunity with staff and Trade Unions and be meaningful take place even if those who may be declared redundant are not union members be formal via formal consultation letter to Trade Unions which will include disclosure of certain information required by law be with a view to reaching an agreement include an examination of ways of V2_ Page 9 of 24 - avoiding the dismissals - reducing the numbers of employees to be dismissed - mitigating the consequences of dismissals Consultation shall also take place with individual employees at risk of redundancy as previous cases at Employment Tribunal have shown that any dismissal could otherwise be procedurally unfair TKAT will offer at least the statutory consultation period in respect of the number of employees affected i.e. 30 days for employees, 90 days for more than 100 employees. 6.2 Early Consultation The Head Teacher, the HR Advisor and the Chair of the Redundancy Committee (or, failing that, another Committee Member) will meet with representatives of recognised Trade Unions to explain the rationale for the proposed redundancies and provide a draft timetable for completion of the process. This meeting will be followed immediately by an Early Consultation meeting with all staff at risk of redundancy. At least 10 working days notice of this meeting shall be given in writing to the Union Representatives, along with copies of the rationale and timeline, and 5 working days notice to employees.

10 1 st April During the meeting, the Head Teacher will provide a copy of the rationale (excluding dates of birth) and the draft timetable to all staff affected by the proposals At the Early Consultation meeting, the Head Teacher will explain the rationale, say how the pool of staff at risk was identified, (if it is not the whole Academy), respond to any queries and note any comments from Trade Unions for further discussion The Trade Union representatives and HR Adviser will remain present at the Early Consultation meeting. Staff will have the opportunity to ask questions and suggest alternatives. At the end of the meeting, staff should be given the opportunity to meet separately with their Union Representatives At this meeting, a date will also be set for a post-consultation Feedback Meeting for staff affected by the proposals and Union Representatives. 6.3 Formal Consultation Where no immediate practical alternatives to resolve the matter are identified at the Early Consultation meeting, the Redundancy Committee will meet to start formal consultation with advice from the HR Adviser. The Head Teacher will give a report to the Committee on the outcomes of the Early Consultation meeting In accordance with Section 188 of the Trade Union Labour Relations (Consolidation) Act 1992, consultation should be commenced as soon as the employer has formed proposals for redundancies. The proposals may be modified in the course of consultation, but an initial Section 188 proposal must be made. The information to be disclosed shall include the following the reasons for the proposals the number and description of employees proposed for dismissal on grounds of redundancy the total number of employees of any such description employed at the establishment the proposed method of selecting employees who may be dismissed (the selection pool ) the proposed method of carrying out the dismissals, including the period of which the dismissals are to take effect the proposed method of calculating redundancy payments (other than statutory) Regardless of the numbers of potential redundancies this information should be sent to the Trade Unions in a formal Section 188 letter and a minimum of 15 working days must be allowed for the Trade Unions to consider the proposals and to make a reply. The Redundancy Committee must meet V2_ Page 10 of 24

11 1 st April 2012 formally to consider any representations made by the Trade Unions and give written reasons for rejecting any representation Staff affected by the proposals must also be given the opportunity to attend an individual, formal consultation meeting with the Head Teacher. The employee has the right to be accompanied by either a Trade Union representative or workplace colleague at this meeting. The purpose of the Individual Consultation meeting is to allow the employee the opportunity to discuss their own personal circumstances and concerns relating to the redundancy process. V2_ Page 11 of 24

12 1 st April Voluntary Redundancy Throughout the consultation period, employees at risk of redundancy can be asked to express an interest in volunteering for redundancy. A closing date for expressions must be specified but must be no later than the end of the consultation process. An expression of interest will be made without prejudice, i.e. an expression will not commit the employee to accept an offer of voluntary redundancy, will not influence any process of selection and will not commit the LGB to making an offer of voluntary redundancy Any requests for estimates of terms will be provided, in confidence, by the Academy Business Manager/Bursar Once the employee has had the chance to consider the estimate of terms and has made a decision to volunteer for redundancy, they will be asked to confirm their interest in writing before the end of formal consultation, although this would not guarantee agreement by the Local Governing Body If a situation arises where there are more volunteers than opportunities for voluntary redundancy, the Redundancy Committee will apply the selection criteria to reach a decision. Any volunteers not offered redundancy have no right of appeal against this decision, although the Redundancy Committee should give their reasons Throughout the consultation period and as a way to mitigate compulsory redundancies the offer of voluntary redundancy to staff outside of those immediately at risk, including where appropriate, those at other TKAT schools, may be made (known as bumping ). In so undertaking this process, schools may wish to undertake a skills audit or assessment of those at risk in order to seek information regarding relevant alternative areas where bumping may be appropriate. V2_ Page 12 of 24

13 1 st April FEEDBACK TO UNIONS AND STAFF 7.1 Immediately following the consultation period and prior to any selection process, a meeting should be convened by the Head Teacher and the Chair of the Redundancy Committee with Union Representatives and affected employees to feedback the outcome of the Consultation process. 7.2 During this meeting, the process may be ended if sufficient and suitable volunteers have come forward, or as a result of significant alternations to the proposals. If this is not the case, the selection process and the remaining part of the procedure will be explained to the staff, including any alterations to the original timetable. V2_ Page 13 of 24

14 1 st April SELECTION OF STAFF TO BE DISMISSED ON GROUNDS OF REDUNDANCY 8.1 Selection Process Once the Redundancy Committee has replied to any written responses from Trade Unions at the Formal Consultation stage, and assuming that sufficient, suitable volunteers or alternative solutions have not been found and agreed, the Head Teacher will issue at risk letters to all staff at risk of redundancy together with any information/documents relevant to the method of selection being used. In circumstances where a whole function within the Academy is ceasing to operate and all the staff in that function are to be dismissed on grounds of redundancy, no selection procedure will be required The Redundancy Committee will then meet and, with advice from the Head Teacher and the HR Adviser, select employee(s) for redundancy by scoring them objectively against the selection criteria agreed during consultation (section )and using information about each employee obtained either using an agreed, anonymous audit form and/or through a formal interview with the employee The Head Teacher will write to the employee(s) selected to inform them of the decision of the Redundancy Committee in writing, and will offer the employee the opportunity to make Representations against its decision Once an employee has been issued notice of the termination of employment on grounds of redundancy, the Academy will continue to assist in efforts to secure redeployment. 8.2 Selection Criteria Where the options outlined for avoidance of compulsory redundancy have not produced satisfactory results, the Redundancy Committee will select individual members of staff strictly in accordance with previously identified selection methods and criteria Either the whole Academy function affected by the redundancies or a specific staff group may be the unit of selection The criteria for selection for redundancy adopted by the Redundancy Committee are a vital element in assessing whether redundancies have been fairly carried out. Objective criteria (based on the future needs of the Academy), precisely defined and capable of being applied in an independent way must be used when determining which employees are selected for redundancy. Governing bodies should, in consultation with the recognised Trade Unions, apply the following selection criteria when enforcing redundancies Curriculum, Pastoral and organisational needs of the Academy. V2_ Page 14 of 24

15 1 st April Qualifications and relevant recent (e.g. 5 years) experience of staff together with skills will be clearly identified, e.g., qualifications; particular subject expertise; flexibility across subject areas as demonstrated either by current actual teaching and/or qualifications and/or relevant past actual teaching; qualifications or experience in relevant subject areas; qualifications or experience to teach certain levels and additional relevant qualifications/training Formal live disciplinary warnings, and live capability processes, may be used but they must be consistently and equitably applied with advice from the HR Adviser as there may be a risk of unlawful discrimination against employees. 8.3 Such detailed analysis will ensure that the Academy retains the staff it needs based on its requirements and that the staff to be retained have the best quantifiable skills and experience for those requirements. If all else is equal then LIFO (last in first out) can be applied based on continuous Local Authority Service as defined by the Local Government (Modification) Order The type of skills and experience relevant to the type and level of work to be performed should be clearly defined and an employee s relevant career history examined against this criteria. The Head Teacher must ensure that the records used for this purpose are complete and accurate and that the individual is fully consulted. 8.4 The drawing up of objective criteria is not by itself enough to guarantee fair and reasonable selection. Selection will be unfair if the criteria are unreasonably applied and the LGB must be able to demonstrate that there has been comparative analysis of information relating to all employees in the unit of selection and that the criteria have been applied objectively. V2_ Page 15 of 24

16 1 st April EMPLOYEE RIGHTS TO REDUNDANCY PAYMENTS 9.1. Redundancy payments will be calculated in accordance with a formula laid down in statute. There are, however, two additional rules that apply to all TKAT Academy staff Redundancy payments will be based on an employee s ACTUAL weekly pay and are not subject to the limit in the statutory scheme As a result of the Redundancy Payments (Local Government) (Modification) Order 1983, an employee is entitled to receive a redundancy payment based on all continuous local government and related service (subject to a maximum of 20 years). This also means that, if an employee who has been given notice of redundancy receives an offer (made prior to the date of redundancy) of suitable alternative employment in local government or a related service, to commence within four weeks of their date of termination, there will be no entitlement to a redundancy payment. 9.2 Redundancy pay is due to employees with at least two years continuous service. For each complete year of service, up to a maximum of 20, employees are entitled to: for each year of service under 22 years of age - half a weeks pay for each year of service at age 22 but under 41 - one week s pay for each year of service at age 41 or over - one and a half weeks pay The table at Appendix A shows the number of weeks pay to which an employee is entitled. 9.3 No additional payments by way of compensation for dismissal on the grounds of redundancy will be paid under this Redundancy policy V2_ Page 16 of 24

17 1 st April OFFER OF ALTERNATIVE EMPLOYMENT 10.1 General Principles If available, TKAT will offer suitable alternative work within the Company to employees at risk of redundancy. An employee who unreasonably refuses an offer of suitable alternative employment may lose any entitlement to redundancy pay. It is therefore important to determine clearly whether the alternative work is considered suitable and whether an employee s refusal to accept it might be reasonable or not. The suitability will depend upon a number of factors including pay, status, location and working environment. An unreasonable refusal may arise where the differences between the old and the new job are negligible but refusal may be reasonable if there is a significant change, for example in working hours or location Offers of alternative employment must be in writing and must include, as a minimum, the following details The type of work to be undertaken and the training to be given, where appropriate Job title & job description The location of the new job The rate of pay applicable to the appointment and any other terms and conditions of service which differ from those of the previous appointment and any salary protection offered The hours of work The date of commencement and the date of the end of any trial period That an unreasonable refusal to accept an offer of suitable alternative employment will disqualify the entitlement to redundancy payment. Offers of suitable alternative employment must take account of the circumstances of employees, e.g., ability to travel, disability, special family circumstances, and status of postholder. V2_ Page 17 of 24

18 1 st April Alternative Employment - Trial Periods In the event that an employee under notice of redundancy is offered alternative employment under a new contract of employment with terms and conditions that differ (wholly or in part) from the corresponding provisions of the previous contract, the Local Governing Body has a legal obligation to give the employee a trial period of at least four weeks in which to make up his/her mind about the job and this offer should be in writing. This statutory four-week trial period should begin when the old contract expires. If the trial period is unsuccessful, the employee will be redundant on the same terms that applied at the end of the original contract Before the trial commences, each individual case will be dealt with individually and the LGB and the employee will agree in writing The location of the job The salary to be paid The hours per week and weeks per year of work During the trial period the employee is free to terminate the new contract in writing for any reason other than those agreed in Section , and on termination to be treated as though he/she had been dismissed on the date the previous employment ended A trial period longer than the statutory period of four weeks may be agreed with the employee but only where this is necessary for retraining purposes. Such an agreement must be in writing setting out the start and finish of the extended trial period and the employee s terms and conditions after it ends If the employee works beyond the end of the four-week trial period and no express extension has been agreed in writing, the employee will be deemed to have accepted the new employment and any redundancy entitlement will be lost. V2_ Page 18 of 24

19 1 st April TIME OFF TO SEEK ALTERNATIVE EMPLOYMENT 11.1 An employee who is given notice of dismissal for reasons of redundancy has the right, before this notice expires, to reasonable paid time off from work in order to attend interviews, training or make arrangements for training for future employment While this provision normally relates only to those employees who have been continuously employed for two years or more, the LGB should still allow employees to take reasonable paid time off for the reasons specified above Before being granted time off to seek alternative work, the employee will be expected to provide evidence that the time off requested will be used for the purpose of seeking alternative employment. V2_ Page 19 of 24

20 1 st April REPRESENTATIONS 12.1 It is a requirement of the Schools Standards and Framework Act 1998 that any Academy employee who is dismissed must be given the opportunity to make representations as to the proposed dismissal, and the LGB must have regard to such representations Individuals who have been identified by the Redundancy Committee as potentially redundant must be advised in writing by the Chair of the Committee and their right to make representations against their selection to the Redundancy Committee The Head Teacher will convene a Representations meeting of the Redundancy Committee with the employee and his/her representative, also attended by the Head Teacher and HR Advisor as advisors to the Committee. The Committee must have available to them all the documentation used in the selection process. These documents are not for general circulation and will remain confidential to the Committee The Representations meeting is not an opportunity for the employee to add to information already given, nor should comments be made on the performance, conduct, skills etc. of other individuals The Chair of the Redundancy Committee will present the reasons which led to the provisional selection of the employee, and the employee or his/her representative will then given the opportunity to ask questions. The employee or his/her representative will then present reasons why he/she should not be selected. The Redundancy Committee should ensure that they also have the opportunity to ask questions of all parties themselves At the end of the meeting the employee may ask the Committee to reconsider its provisional selection decision, in which case the employee, his/her representative, and the Head Teacher will withdraw whilst the committee makes its decision. The HR Adviser will remain in the room to give further advice where necessary The employee, his/her representative and the Head Teacher will return to hear the decision of the Committee which will be confirmed in writing. If the Committee confirm their provisional decision to dismiss, the employee will be given their right to appeal to the Appeals Panel. V2_ Page 20 of 24

21 1 st April NOTICE 13.1 Once notice has been given in writing, it can only be withdrawn by mutual consent. If an employee is given notice and subsequently a suitable vacancy arises, the notice given cannot be unilaterally withdrawn. That said, because the LGB has a legal obligation to offer suitable alternative posts to an employee under notice, if the employee were to refuse the offer of a suitable alternative post, even during a notice period, the employee would risk losing entitlement to all redundancy benefits All employees are entitled to a minimum period of notice of termination of employment LENGTH OF SERVICE STATUTORY MINIMUM NOTICE PERIOD 1 month to 2 years 1 week 3 to 12 years 1 week for each complete year up to 12 weeks More than 12 years 12 weeks 13.3 An employee will be entitled to a longer period of notice than the statutory minimum if this is provided for in the contract of employment Teachers and Head Teacher notice periods and termination dates, as laid down in Conditions of Service for School Teachers in England & Wales Document 2000 and the The School Teachers' Pay and Conditions Document (STPCD), will apply in a redundancy situation The employee will normally be expected to work out their notice, but in exceptional circumstances payment in lieu of notice may be agreed with the employee following selection for redundancy. V2_ Page 21 of 24

22 1 st April APPEALS 14.1 An employee who is aggrieved by the Redundancy Committee s decision to terminate his/her employment by reason of redundancy has the right of appeal to the Appeals Committee The employee or his/her representative must submit their appeal in writing addressed to the Clerk of the LGB not later than 10 working days after receipt of the letter advising of his/her termination of employment. The letter must provide clear reasons for the appeal that must relate to some perceived failure in the application of the selection criteria or failure of procedure The Appeal hearing must be held within 10 working days of the receipt of the employee s appeal letter unless otherwise mutually agreed by the employee or his/her representative and the LGB The employee must be advised in writing of the date, time and place of the hearing and that he/she has the right to be represented, either by a Trade Union representative or workplace colleague The appeal shall be heard by the Appeals Committee. The Chair of the Redundancy Committee and/or the Head Teacher advising on the application of the selection procedure and the aggrieved employee and his/her representative shall be entitled to attend and be heard. The Appeals Committee should be advised by an HR Adviser The Chair of the Redundancy Committee and/or Head Teacher shall put his/her case and the employee (or his/her representative) shall have the opportunity to ask questions. The Committee may ask questions of the Chair of the Redundancy Committee and/or Head Teacher The employee (or his/her representative) shall put his/her case and the Chair of the Redundancy Committee and/or Head Teacher shall have the opportunity to ask questions. The members of the Appeals Committee may ask questions of the employee (or his/her representative) At the end of the hearing the Committee shall consider the evidence given, ask further questions of either party if necessary and shall make their decision The employee shall be informed as quickly as possible after the hearing of the Appeal Committee s decision and the reasons for it by the Chair of Appeals committee. This decision and the reasons for it shall then be confirmed in writing, to the employee within 10 working days. The Committee s decision shall be final. V2_ Page 22 of 24

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