In Chapter 7, Using Your Rights, I include a section about redundancy and TUPE consultation. My focus is on how to use the process to help you organise, rather than offering advice on how to get the best out of the consultation itself. I write:
It’s a huge boost for management if they can get reps to ‘agree’ things – whether that is a whole redundancy programme, selection criteria or detrimental TUPE measures. Management are required by law to consult ‘with a view to reaching agreement’, but there is rarely much benefit to workers from reps agreeing to anything that might harm a worker. How can you campaign against something you agreed? Agreeing selection criteria up front hampers you in helping a worker challenge their selection. Workers taking the employer to tribunal after losing their job are not helped if the union agreed the redundancy programme.
Workers Can Win, page 128
I want to clarify that I’m not arguing that we should simply leave the issue of selection criteria up to management. When management consult workers about proposed redundancy selection criteria it makes sense to point out all the problems with them. This can produce a less grotesquely unfair or discriminatory process. Far from hindering workers challenging their selection, this is likely to help, as management rarely address all of workers’ criticisms.
However, there is a difference between criticising management proposals and agreeing the result. Selection criteria are rarely completely objective. Even when they are, they are still being used to favour some workers over others. For example, ‘Last In, First Out’ (LIFO), using length of service to decide who is dismissed, is objective. It prevents management cherry-picking favourites they want to keep or weeding out workers who challenge management. It gives workers more job security over time, reflecting the fact that workers gradually build more of their lives around a job the longer they are in it. However, LIFO tends to penalise younger workers. It will often also lead to indirect discrimination on other grounds because many employers have got better at recruiting a more diverse workforce. Dismissing all the recent hires could mean firing a disproportionate number of women, black or ethnic minority workers. You may not be aware of all the implications of selection criteria at the time you are being consulted on them – sometimes this only becomes obvious when they are applied.
So I stand by the point in the book, that it is unhelpful to agree redundancy selection criteria with management, as that undermines the position of whichever workers are selected. But don’t hold back on criticising whatever management propose.
Image: Image: CIPHR on Flickr (CC BY 2.0)