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Purpose
1. This note provides guidance to managers on the legal considerations that need to be taken into account and the process that should be followed when identifying the pool of staff that are at risk of redundancy.
Scope
2. This guidance applies to all employees of UCL.
3. UCL is committed to avoiding making staff redundant wherever possible. Managers should read Reviewing workforce requirements – a guidance note for managers and consider all suggested options before proposing redundancies.
4. Where it is necessary to make posts redundant, managers must seek to ensure the selection of these posts is fair and consistent. Further information can be found in the organisational change procedure.
Definitions
5. Redundancy: Section 139(1) of the Employment Rights Act 1996 provides that a dismissal is by reason of redundancy where an employer:
- ceases carrying on the business in which the employee worked; or
- ceases carrying on that business in the place where the employee worked; or
- needs fewer people carrying out work of the kind that the employee performed (particular aspects of work will cease or diminish)
6. A redundancy as defined above is therefore a potentially fair reason for dismissal under s.98 of the Employment Rights Act 1996.
7. Selection pool: This is typically the group of employees identified as undertaking a similar type of work within a particular department or departments, or at a relevant location or locations and it is from this group that individuals may be selected for redundancy. Where only one person is undertaking such work then it is permitted to identify a 'pool of one'.
8. Bumping: Sometimes also referred to as 'transferred redundancy', occurs where an employee whose job is redundant 'bumps' another employee out of their job so that the employee who was 'bumped' is the one who is actually made redundant. See paragraph 12 for additional clarification.
Procedure
9. To ensure a potentially fair reason for dismissal, the first stage of any redundancy exercise is to identify the 'selection pool' of employees from which the candidates for redundancy will be selected.
10. Any selection criteria for redundancy must be objective and applied consistently and this includes selection for the 'pool'. If the wrong pool is identified it could render any resulting dismissal(s) unfair and leave UCL at risk of a claim being brought to Employment Tribunal. The rationale for any pool should be shared with those affected and may be challenged, so it is important to have clear reasons as to how the pool has been properly and fairly identified.
11. Firstly identify those immediate employees within a department or division who are undertaking the same or similar work to those duties that are no longer required to be performed.
12. Consideration should be given as to whether 'bumping' may be appropriate. For example, an employee not directly undertaking the same work may wish to volunteer for severance or redundancy, freeing up their post to which an individual at risk of redundancy can be redeployed.
13. Case law establishes that there is no absolute obligation to consider bumping in all cases but that a failure to do so may make a dismissal unfair. Factors to be taken into account include (but are not limited to):
- whether there is a vacancy;
- how different the two jobs are;
- the difference in grade and remuneration between the two jobs;
- the qualifications of the employee at risk of redundancy;
- any other factors which may apply in a particular case
14. It is normal practice at UCL that pools are ring-fenced to changes within a particular Faculty or Department (dependent on the scope of the change) or Professional Services Division. It would only be in very exceptional circumstances that staff in other Faculties or Professional Services Divisions would be included in a pool.
15. A woman on Maternity Leave or an employee on Shared Parental Leave or Adoption Leave, at the time a redundancy situation occurs, will have additional legal rights which must be adhered to.
It is permissible and may often be necessary to include an individual on Maternity, Adoption or Shared Parental Leave in a selection pool. If this happens they must also be consulted with, as for any other employee.
If the individual is subsequently given notice of redundancy, they have the right to be offered any suitable alternative employment, across UCL, ahead of any other redeployee. Managers are expected to take an active role in identifying suitable alternative employment.
The individual would not be required to undertake a competitive selection process, although some discussion may be required to ascertain whether the alternative employment being offered is indeed suitable for both the individual and UCL.
Please contact your HR Consultant in any situation where you think this may be applicable.
16. A pool should therefore include all employees who carry out work of the kind which the employer no longer needs and those whose jobs are similar to the employees for whom there is a reduced need. However if there is genuinely only one employee in the affected job role, the selection pool will consist of just one person.
17. It is possible that on some occasions, the number of employees in the selection pool will be the same as the number to be made redundant.
18. When deciding if the correct pool for redundancy selection has been chosen, the employer must be able to demonstrate that it took a reasonable approach, as this would be the consideration given to a case that reaches Employment Tribunal.
Therefore the key questions to consider are:
- Whether the selection of the pool is within the range of conduct which any reasonable employer could have adopted?
- Has the manager, on behalf of UCL as the employer, genuinely applied it's mind to the problem?
19. It is also important to note that some pools may be considered discriminatory, for example if they include only part-time staff (who are more likely to be women), or fixed term staff, or focus only on recent recruits (who may be younger workers), so it is important to avoid this.
20. Where appropriate to do so, UCL will also consult on the configuration of selection pools with the recognised campus trade unions.
Disagreement
21. Where staff raise concerns or objections about the process used to select the pool, or disagree with the construction of the pool and those identified as being in the pool, this should be noted for discussion and further consideration during the next phase of the consultation process. Subsequently a response should be provided to all those concerned. However there is no legal requirement for an appeals process solely about the selection of the pool.
Monitoring and Review
22. This guidance document will be kept under review by HR and updated as necessary in line with changes to employment law.
HR Employment Policy
September 2021