HiI am an employer and my company was awarded a cleaning contract in October 2011. There were 43 sites under this contract. Before October 2011 the client had issued an hours worked based specification but during the new tender process the client changed the specification to an output based one. Prior to being awarded this contract we lost a large contract in July 2011 due to the client changing the specification like this. We tendered on the TUPE hours being worked but our competitors did not - they tendered on how long it would actually now take to clean the buildings with the specification change and were awarded the buildings resulting in a great loss to our business. For the contract we were awarded, we decided that we would have to adjust our pricing model in order to remain competitive so we tendered on how long it would take to clean the buildings and were successful in our bid. This meant that there were reductions in cleaning hours required and this was introduced in 36 out of the 43 sites. Contract award was 21st September 2011 and contract commencement was 1st October 2011 so this gave us very little time to consult with all affected transferring employees. The reductions were accepted in 32 out of the 36 sites affected but this has left 4 sites refusing to reduce their hours. We have been consulting with all employees at these sites since October 2011, unfortunately not getting a chance to before the transfer took place. We felt that we had a genuine ETO reason due to our financial loss from loosing the very large contract and the change in specification therefore entitling us to reduce their hours. We did not proceed with this path but still need to reduce the hours as we are paying out hours that we have not tendered for and it is making the contract very close to being unable to break even. Due to the change in speicification, we are now pursuing redundancy at these 4 sites in order to get the hours to the level we require. This same level of reduced hours has been applied and accepted at 32 sites and is operating very successfully. The 4 sites who have not accepted their reduced hours or that there was a genuine ETO situation are now saying that their is no redundancy situation either. Their union rep has now disengaged from the redundancy process even thought we had just completed the 2nd redundancy consultation meetings for all sites. I would just like to ask your advice on whether you feel their is a redundancy situation. The change in specification meant that cleaning duties that were carried out on a daily basis has now been changed to either 3 times a week or weekly etc. This allowed for savings in time taken to met the specification standard. The client had asked for the contractor to 'use their skills and judgement to achieve a cost effective and efficient service' by introducing 4 standards of cleaning so that their requirements could be met. I look forward to hearing your response.Kind RegardsG
Province/Country relating to question: Northern Ireland
getting them to reduce their hours voluntarily and offered some of the affected employees other hours at other buildings.
Hello and thank you for your question, which I will be happy to assist you with.
In order to go down a redundancy route you would need to show that there was a genuine redundancy situation. Generally speaking, redundancy is used to describe a situation in which an employer decides to reduce the number of its employees, either within the business as a whole, or within a particular site, business unit, function or job role. An employer may decide to make redundancies for a variety of reasons, including recession or other economic pressures requiring business closure or reduction in staff number, changes in the nature of products/services offered, internal reorganisations, relocation of business, etc. The reason for the proposed redundancies will not be challenged and the employer will simple have to justify that the actual reason conformed to the statutory definition of a redundancy.
The legal framework is as follows: according to Section 139 of the Employment Rights Act 1996, a redundancy situation can only occur in one of the following circumstances:
Whilst the first two reasons are reasonably straightforward, it is the third reason that will be used most commonly and also the one that brings the most challenges.
Examples of when there is a diminishing responsibility to do work of a particular kind are:
So consider whether these conditions are met. As long as this falls within at least one of them a potential redundancy would exist and you can argue that this is a redundancy situation and proceed on that assumption.
I feel that there is less cleaning work needed to be carried out as the specification change meant that bins etc are no longer emptied daily, carpets are no longer fully vacuumed on a weekly basis and furniture, fixtures and fittings are no longer cleaned daily but as and when required. This reduces the amount of work required therefore fewer employees are needed. Will it make a difference to any subsequent tribunal that we did not consult with these employees prior to the transfer as we did not have sufficient time to get round all 43 sites? 1 of the 4 sites cleaning staff actually refused to meet us before the transfer because they had heard that we were wantng to discuss reducing hours. We have been consulting with all staff from all 4 sites since October 2011 but they're Union just refuse to budge!
Employers can raise a defence of 'special circumstances' for their failure to consult with the affected employees. This means that if it was not reasonably practicable for employers to carry out their information and consultation obligations they can try and use this defence, although they still have to take such steps as are reasonably practicable to
try to fulfil their obligations. This means that a failure to comply fully may be defensible, but a total failure to comply with the rules may not be
Does this answer your query?
Expert in UK Employment Law
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