GOVERNOR TRAININGDECEMBER 2011

REDUNDANCY PROCEDURESTEACHING AND NON-TEACHING

Mervyn Cooke - Human ResourcesPaul Lawther - CASS

PROGRAMME• Legal Context• Roles – Main Duties of Employers• Guidance & Advice • Redundancy Procedure for Teachers– Identifying need for redundancy– Selection criteria– Stages in procedure– Appeals

• Transferred Redundancy Procedure• Non-Teaching procedure• Summary Points

Legal Context• Redundancy has two meanings for purposes of employment law in NI;

– one used for entitlement to statutory redundancy payments (Employment Rights (NI) Order 1996);

– other meaning used for the right to be consulted.

• For entitlement to redundancy payments redundancy arises when employees are dismissed because;– Employer has stopped or plans to stop business for the purpose which the

E/ee was employed for;– Employer has stopped or plans to stop carrying on business in place where

E/ee employed;– Business no longer needs as many staff to carry out particular kinds of work;– Business no longer needs as many staff to carry out particular kinds of work in

place where E/ee employed.

Legal Context• For purposes of right to be consulted redundancy defined as;

– “Dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related” (Article 223 Employment Rights (NI) Order 1996).

– Redundancy relates to position not individual.– May include situation where redundancies are not related to behaviour or

capability of individuals but are part of a reorganisation where no reduction in overall staffing level.

– An employer considering making an E/ee redundant must follow minimum statutory dismissal procedure (Employment (NI) Order 2003 (Dispute Resolution) Regs 2004 which involves;• Writing to employee;• Setting out reasons for contemplating dismissal in writing• Meeting to discuss (before decision made);• Holding an appeal if the employee asks for one.

Legal Context

• Declaration of redundancy through notice to an individual employee is a dismissal.

• In accordance with the Education (NI) Order 1998 Schedule 2, it is within the remit of the Board of Governors of a school with a fully delegated budget to:

• Determine that a person will no longer work in a school for whatever reason, that includes redundancy, disciplinary action, ill health etc.

Roles • The Board of Governors has responsibility for budget and staff

management in the school

• Administration of the redundancy procedure is the responsibility of the Chair of Governors in conjunction with the Principal

• Principal acts as Secretary and professional adviser to Board of Governors and therefore has key role in the process

• Employing Authority will provide advice and guidance

Main Duties of Employers• To act reasonably and make every effort to avoid compulsory

redundancies • To engage in meaningful consultation with Trade Unions and

employees (with a view to reaching agreement)• To establish fair and objective selection criteria• To select the individual fairly and in accordance with legislative

requirements• To provide the opportunity for the individual to make representations

and to provide for the right of appeal• To allow the individual time off to look for alternative employment• To conduct the process in a transparent manner in accordance with

procedures agreed with trade unions

Guidance & Advice• Labour Relations Agency;

– Advice on Handling Redundancy Booklet (Oct 2007) (www.lra.org.uk) provides outline of legal responsibilities and good practice;

– Department for Employment & Learning (www.delni.gov.uk) – information and employment rights booklets;• ER3 – Redundancy Entitlement & Statutory Rights • Er4 – Redundancy Consultation and Notification

• Redundancy Procedures agreed with recognised Trade Unions– TNC Circular 2010/1 – Procedure for handling Teacher Redundancies (&

associated Guidance Notes / Sample Letters)– Redundancy Policy and Procedure – Non-teaching staff (Schools with fully

delegated budgets).

• Principal – professional adviser• Advice and guidance from Board (HR & Education)

Redundancy Procedures

• Separate procedures negotiated through different bodies (TNC for Teachers and JNC for Non-Teaching)

• Teachers procedure has strict timetable and redundancies normally declared at 31 August each year

• Non-teaching procedure can be implemented at any point in the year and redundancies declared at any time

Redundancy Procedure – TeachersStage I – Board of Governors Meeting • Teacher Representative should withdraw from meeting• Review staffing levels taking into account all relevant information• Establish rationale for any proposed reduction in staffing• Delegate to a Staffing Committee responsibility for consulting with

unions; applying the selection criteria; meeting with any teachers identified to discuss contemplated dismissal on grounds of redundancy; making recommendations to the Board of Governors

• Delegate to an Appeals Committee responsibility for meeting with the teachers who have been nominated for redundancy to hear their appeals; making recommendations to the Board of Governors

Redundancy Procedure – TeachersFollowing Stage I Meeting

– Principal / BoG representative to meet with staff– Notify all staff in writing of decision regarding staffing

levels– Seek expressions of interest in VR or options to reduce

staffing such as retirement , career break / job-share / part-time working, etc (Appendix A in Guidance)

– Write to teaching unions providing the required information and invite representations / attendance at meeting established for the purpose of consultation recommended minimum of 2 weeks notice(Appendix Bi)

Identify Need for Redundancy• First step determine staffing levels, taking into

account all the relevant information: curriculum/staff audit, budget, enrolments, 3 year plan, school development plan etc.

• Needs of school paramount • Need to record reasons and provide supporting

documentary evidence of the need for the redundancy

• Legal obligation to consult with recognised trade unions ‘with a view to reaching agreement’

Disclosure of Information• In order to ensure meaningful consultation

Boards of Governors must legally disclose the following information in writing before consultation begins (Appendix Bi):– Specific reasons for the proposals– Numbers and descriptions of staff who it proposing to

dismiss (posts not people)– Numbers and types of staff in the school (the staffing

audit)– Proposed method of selection i.e. criteria– Proposed method of carrying out the dismissals i.e.

the procedure to be followed

Consultation• Specific legal requirement to consult recognised trade unions and

individual members of staff • Consultation should include ways of avoiding the redundancies,

reducing employees to be made redundant, and reducing the effects of the redundancies;

• Employer must carry out consultation ‘with a view to reaching agreement’ with appropriate representatives

• To consult effectively must have clearly identified proposals based on the need for the redundancy and clear definition of the criteria for selection which must be disclosed to trade unions

• Must begin at earliest opportunity and must be meaningful i.e. Governors must seriously consider any alternatives suggested and explain in writing the reasons if they are deemed unacceptable

• Even if redundancies seem inevitable decisions must not be finalised until consultation process is complete.

Stage II – Finance / Salary Committee• Consider responses from staff (expressions of interest)to assess if

can avoid need for redundancy• Consult with teaching unions and consider any representations

made - respond in writing. Main points of discussion should be recorded in minutes

• Agree Selection Criteria & notify trade unions (Appendix Bii) • If decision is to proceed, consider expressions of interest from

volunteers and apply agreed criteria and nominate volunteers.• If necessary, apply criteria for compulsory selection and identify

teachers to be nominated for compulsory redundancy• Set date to meet with individual teachers• Record all decisions and rationale for them in minutes

Selection Criteria• Needs of school remain paramount• Must be fair, objective and justifiable - supportable by factual

information• Must comply with Equality legislation / non- discriminatory• Pool for selection and criteria must be clearly defined and

understood by Governors, teachers and unions• Must be developed specifically to meet the needs of school taking

individual staffing, management and curricular circumstances into account

• Use of ‘Last in First out’ (LIFO) is potentially age discriminatory and must not be used as sole selection criterion

• Notify Trade unions of proposed selection criteria (Appendix Bii)

Selection Criteria• Voluntary Redundancy – Requirement to maintain the effectiveness and

efficiency of the service through the retention of suitably qualified and skilled staff

– Most cost effective for the school in consultation with employing authority

– In unlikely event of all else equal – random selection

– Notify staff nominated for VR (Appendix C)

Selection Criteria

• Compulsory Redundancy– Curricular and non-curricular needs of school should

be clearly identified according to their priority– Potential areas for consideration in establishing

justifiable criteria;• Statutory requirement for curriculum delivery and teachers

contribution to curriculum• Specialist roles undertaken in school which cannot be easily

replaced• Total teaching experience in the current school• Notify staff being contemplated for redundancy(Appendix D)

Selection Criteria• Individuals may be found to have been unfairly

dismissed if unfairly selected for redundancy for number of reasons including; – taking part in TU activities;– maternity related reasons;– asking for flexible working arrangements;– Asserting an employment right

• Redundancy may also be found to be discriminatory if person was chosen because of their religion, political opinion, sex, marital status, race, disability, sexuality or age.

Action following Stage II meeting• Write to each teacher who has volunteered

advising of the outcome of the meeting (Appendix C)

• Write to any teacher that contemplating for compulsory redundancy to provide opportunity to attend meeting to discuss situation and make representations (Appendix D)

• No decision taken at this stage – compliance with statutory dismissal procedure.

Stage II - Meeting of Finance / Salary Committee to hear representations

• Meet with each individual nominated with their trade union representative or work colleague and hear any representations

• Consider representations and make decision• Record details of discussion and reasons for decisions• After meeting write to each member of staff advising of

outcome and if contemplated redundancy is to proceed. Advise of reasons and of intention to recommend to Board of Governors that they be declared redundant. Advise of right of appeal, date of appeal meeting and right to be accompanied (Appendix E)

• Prepare report for Board of Governors

Stage III – Salary Appeals Committee• Meet with teacher to hear representations

against his/her selection for redundancy • Appeal to Governors not involved in original

decision to nominate for redundancy• Consider carefully representations and reach a

decision– Proceed to implement redundancy & dismissal– Set aside redundancy & dismissal

• Record details and decisions in minutes

Stage IV - Board of Governors Meeting• Consider recommendations of Finance / Salary

Committee and (if required) Salary Appeals Committee

• Decide if redundancy should proceed or be set aside

• Inform teacher and union of decision and if it is to proceed of the reasons why their representations were not accepted. Advise of right of appeal to Independent Appeal Panel (Appendix Fi & Fii)

Stage V - Independent AppealRemit of independent appeals panel is to determine whether the principles and procedures have been properly followed and if so to determine whether the Board of Governors acted reasonably in selecting the individual for redundancy

Independent Chair appointed by LRA + 2 panel members (nominated by employing authority & trade union)

Board of Governors must be able to demonstrate adherence to procedure through documentary evidence.

Requires the submission of the details of the case and of all relevant documentation and attendance of Chairperson and Principal to explain rationale for decisions.

Outcome final and binding

Notice of Termination• Notification of termination of employment will be

issued by the board on receipt of instructions from the Board of Governors that the teacher be dismissed from the school on the grounds of redundancy.

• All stages of the procedure including the independent appeal must be completed before the issue of notice.

• Termination normally 31 August – 4 months notice means that must issue formal notice of termination by end of April.

Transferred Redundancy Process

• Inter-board / Employer Process to avoid compulsory redundancies

• Transferred redundancy with volunteer from another school

• Available to all teachers nominated for compulsory redundancy

• Administered by the Board, normal procedures in respect of appointments apply

Non – Teaching Procedure• Same principles apply- stages slightly different– Seek to avoid redundancies– Consultation– Consistent application of objective selection criteria– Opportunity to make representations / internal appeal – Independent Appeal –v- determination to dismiss

• Unit of Selection important issue• Redeployment within school / board (Alternative

Employment)• Not as time-bound as teachers procedure – statutory

notice requirements must be complied with (max 12 weeks).

School Staff Audit

• An audit is carried out to establish the complement of staff needed

1. To deliver the curriculum2. With school budget

Post Primary

• Can the school deliver the curriculum.• Are some subjects more popular or less

popular resulting in a surplus or deficit of staff.

Summary Points• Don’t delay - start the redundancy process as

early as you can• Following agreed procedures critically important• Document rationale and decisions• Know what you are doing and why• Be consistent, objective and fair• Act with confidentiality and sensitivity• Seek advice throughout process