Employment rights act and redundancy

However, the practice is by no means universal and in some jurisdictions, redundancy is regarded as merely one of many operational reasons that would justify a dismissal. These terms are used interchangeably in this review. However in case of dismissal for operational reasons or other business needs, the court may examine whether dismissal was actually necessary or whether it would have been possible to transfer the worker to another post 1. In this respect, a comparison can be made with Canadian law. This legal protection can be used as a mean to control afterwards the grounds of dismissal. Similarly under federal law, the employer can be required to provide an economic justification for the dismissal and a reasonable explanation of the choice of dismissed employees.

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Content:

• Navigation
• Commercial Law Updates
• What are my statutory and contractual rights at work?
• Unfair dismissal
• Redundancy: your rights
• Leaving or losing your job
• Fighting Redundancy
• Redundancy Rights
• Advice on employment rights
• United Kingdom: Severance pay/redundancy compensation

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Redundancies are, unfortunately, a fact of life. For the most part they occur because an employer wants to restructure to adapt to a changing business environment. This adaptation means that new roles may be created in, or old roles removed from the employer's organisation. It is the removal of roles or job positions within the employer's organisation that leads to that role becoming redundant.

When the role is removed the employee in that role is affected, and his or her employment contract terminated, by reason of the redundancy. Fiji law recognises that employers are entitled to restructure their operations and make roles within their organisations redundant. But Fiji law also regulates this process by amongst other things: restricting the reasons that may justify a redundancy; setting out a redundancy process that must be followed; and setting a minimum standard for the redundancy package that must be given to the employee who may be terminated by reason of redundancy at the end of this process.

In this commercial law update, we provide more information on the minimum standards that employers must follow. But because this is not intended as legal advice and should not be relied on as such - all employers who may be contemplating redundancies should consult a lawyer first.

It must also be remembered that at all times all employers owe a duty to treat their employees with good faith, and the redundancy process under Fiji law must not be used as a disguise to terminate employees. Getting this process wrong, can be an expensive mistake, and we briefly discuss recent case law in this regard from a jurisdiction outside Fiji.

A failure by an employer to meet the minimum standards may result in legal liability. Section of the ERA provides that a reason must be provided in writing by the employer to the employee for any termination. This includes termination by reason of redundancy. Section of the ERA sets out the procedure that an employer must adopt to undertake a termination for the reason of redundancy.

Prior to undertaking any redundancies, employers would be well advised to ensure that they have undertaken adequate research and obtained any internal approvals that may be required to be able to justify the reasons for the restructure. For example, if any employer has an internal IT team, but then decides to outsource its IT to an external service provider, then those roles in its internal IT team, or at least some of them may become redundant and have their employment contract terminated for this reason.

This illustrates the point that it is not a termination of employment due to behavioural or any other reason related to the employee. In the event that the employer has after some careful consideration determined that it does need to restructure and that certain positions will be made redundant then the redundancy process is set out in section of the ERA.

This includes a notice period of 30 days of the decision to contemplate redundancy. However, it should be noted, If a period in excess of 30 days is noted in the individual employment contracts, this contractual period will apply. It is an important point of employment law that employers can be more generous than the minimum standards set out in the ERA but they cannot fall below them.

This is why as well as understanding the standards they must meet in the ERA employers should also consider any additional benefits or standards that they have expressly agreed to in the employment contract. This equally applies to collective agreements as these may set out additional rights including in terms on consultation with the affected employees and their representatives.

In addition, pursuant to the ERA the employer must provide a notice of the decision to contemplate redundancy to the affected employee and a notice must also be sent to the Permanent Secretary of Ministry of Labour.

Employers should also be aware that the ERA sets out the minimum redundancy package that must be offered to any employee who may be terminated by reason of redundancy and this is 1 week of pay for each completed year of service. If there are contractual terms that set a bigger minimum package, then the contractual term applies. Finally, employers also have a duty to consult with affected employees to: avert or minimise the number of terminations and to understand what measures the employer may take to minimise the adverse effects of the terminations.

Unfortunately, we have noted that employers have a tendency to overlook this important requirement that applies to them. During this consultation process the employer has an opportunity to explain why the restructure is happening but also to determine whether there are alternative or new roles that the employee may apply for.

This enables information and suggestions to be provided to affected employees. Further, during consultations, employees may themselves make suggestions that would assist them during what is a stressful and difficult process. Employers may find they could accommodate requests for retraining or any number of other initiatives that could lead to a better outcome for both employer and employee. We are unsure why the consultation stage is prone to being overlooked or misunderstood, and it may be due to the emotional side of the redundancy process but the goal of the consultation should be to avert or minimise the effect of the redundancies on the affected employees, and should be approached in this way.

The consultation process does not, and probably should not be limited to one meeting only but may be an ongoing process and where possible should involve trained HR personnel. Employers would be well advised to keep notes of the consultations and handle them in an informed and sensitive manner. As with the redundancy process itself, the consultations should be undertaken in good faith and if there are potential positions that may be created or could be offered to affected employees, then this should be genuine and information should be provided about these positions including the number of new positions and nature of those positions, applications requirement, and recruitment criteria.

This information enables a realistic assessment to be made by employees regarding their future chances.

Unfortunately, at the end of the redundancy process some or perhaps even all of the affected employees may have to be terminated from employment with the restructured organisation by reason of redundancy. Again, it is worth noting that employers are not bound to the minimum standards and may decide to be more generous to its terminated employees.

In our experience, going beyond minimum standards may assist in mitigating the effects of the termination by reason of redundancy and increase the chances of a good faith resolution to the employment relationship.

At the time of termination the employees, must in accordance with the ERA be provided with: the notice of termination with a reason, the employment certificate, payment for all accrued benefits, and a redundancy package. If an employer does not have a genuine intention to restructure its operations for one of the reasons set out in the ERA, and then terminates the employment of an employee or employees for a different reason then it undertakes an unlawful dismissal.

This may also be known as a disguised or cloaked redundancy. An adverse finding against an employer for undertaking a disguised redundancy is a serious matter as the employer has effectively attempted to use a lawful process unlawfully and it is comparable, in our view, to a fraudulent action. It should be remembered that if a claim is brought against the employer that the burden will rest on the employer to justify that the redundancy and the redundancy process was genuine and genuinely undertaken.

An adverse finding by a Court or Tribunal will also result in an award of damages to the employee for unlawful dismissal, and the amount of damages will depend on the particular circumstances of each case. However, in the event of a finding of a disguised redundancy liability could be high.

Although not a Fiji case and therefore not binding on Fiji's judiciary, in the Irish Republic in the case of JVC Europe Limited v Jerome Panisi [] IEHC , Mr Justice Charleton upheld a finding that the employer had undertaken an unlawful dismissal when it had disguised that dismissal as a redundancy, pointing out that the burden rested on the employer to demonstrate that the termination of employment came within a lawful reason. Based on the particular circumstances of that case, the Judge then awarded the employee compensation of EURO , and it should be noted that this was based on legislation from that jurisdiction and also this reduced the initial finding at first instance that awarded the employee EURO , If you are interested in reading this case report then it can be found here.

It should be noted that the burden for the employer is to demonstrate not just that the redundancy was genuine but that it was also undertaken through a genuine process.

In the JVC Europe Limited v Jerome Panisi case it was evident that off the record discussions and announcements by the employer played a significant role in demonstrating to the Court that the redundancy and process was not a genuine one.

In Fiji, this situation has occurred and has been litigated before the Courts. In particular Madam Justice Wati found:. In that case, the Honourable Judge found that the employees who were unlawfully terminated 6 months into their 12 month contracts should be paid for the remainder of their 6 month contracts. This employment law update is provided for information purposes only, and is intended to highlight the Fiji law requirement shared with other common law jurisdictions that a redundancy process should only be contemplated where it is genuine.

Attempts to terminate employees in what are termed disguised redundancies is a breach of the ERA, is an unlawful dismissal and may lead to legal liability. We also respectfully suggest that early legal advice is essential and by this we mean before an employer commences a redundancy process. Fiji has many qualified private legal practitioners who practise employment law who employers may choose to consult and if an employee has concerns then they too may consult a private lawyer or seek legal advice from Fiji's Legal Aid Commission.

If a redundancy process is commenced that is not genuine then the employer's options regarding how to resolve the situation become increasingly complicated. As is often said the cover up can create more trouble than the actual event. Save undertook the case law research for this commercial law update. Thank you, Save! Please note: This commercial law update is provided for information purposes only and it is not intended to be, and should not be taken to be or relied on as legal advice. In the event that you are an employer who is contemplating redundancies or an employee who is affected by a redundancy, then you are respectfully encouraged to seek specific legal advice and assistance from a private practioner or the Legal Aid Commission.

Commercial Law Updates. Written by James Sloan and Ana Tuiwawa. Subscribe to Email Updates. Recent Posts.

Commercial Law Updates

It applies across the whole of the United Kingdom. The ERA set out the rights of employees in situations such as dismissal, unfair dismissal, parental leave, and redundancy. In , the Labour government proposed an amendment to the act — strengthening the right of an employee to request flexible working time — which was subsequently passed by Parliament. Employees may have been given these rights previously contractually, either within business' employment policies or employment contracts of service. The Act now enshrines those rights in statutory law. Section 1 2 of the ERA as amended by the Employment Rights Employment Particulars and Paid Annual Leave Amendment Regulations states that the main terms between the employee and employer must be recorded in writing and given to the employee before the employment begins. Signing creates an enforceable contract between the employee and the employer.

What are my statutory and contractual rights at work?

This page contains a list of employment legislation which is currently applicable in the Isle of Man together with some other legislation which is relevant to employing people. Acts, such as the Employment Act , may be revised from time to time and amendments made by subsequent legislation will be incorporated into the text of the original Act. As that website is most likely to contain completely up to date versions of Acts the table below does not contain hyperlinks to Acts. Most secondary legislation e. Regulations, Orders is not revised and is in the form in which it was originally made. To locate an item please click on the associated hyperlink in the table below. If you cannot find an item of employment legislation you are searching for please email emplaw gov.

Unfair dismissal

If you are under threat of redundancy, been made redundant or offered a settlement agreement by your employer, this guide will give all the information needed to ensure you get what you are entitled to. We will help you understand what is expected of your employer, what you are entitled to, and the options available if your redundancy rights have not been met. The law governing redundancy is covered under section of the Employment Rights Act As such, under UK employment law, redundancy is one of 5 reasons for which you can be fairly dismissed if your position has become genuinely redundant. Legislation and case law relating to redundancy is very complex and it is easy for an employer to fall fowl of their obligations and the procedures they need to follow to ensure your rights are protected.

Redundancy: your rights

The law of unfair dismissal is governed by the Employment Rights Act If you have two years of continuous service to qualify for a claim for unfair dismissal or if you fall within one of the exceptions that do not require qualifying service, you are likely to be able to bring a claim for unfair dismissal at an Employment Tribunal. Although your employer could fairly dismiss you on the ground of capability, conduct, redundancy or some other substantial reason, your employer must have acted reasonably in treating the reason as a fair reason for dismissal. Your employer is under an obligation to take certain steps, procedural or otherwise, before dismissing you. If the dismissal by your employer is found not to have fallen within a band of reasonable responses of a reasonable employer, the dismissal will be unfair. There are other exceptions to the general rule that you need two years of continuous service before you can bring a claim for unfair dismissal.

Leaving or losing your job

Redundancy - a guide. Is it a genuine redundancy? Has there been adequate and meaningful consultation? Was there a fair selection process? Has alternative employment been considered?

Fighting Redundancy

The right not to be unfairly dismissed is a purely statutory right arising under the Employment Rights Act ERA , section Claims for unfair dismissal may only be brought in an employment tribunal and must generally be presented within three months of the effective date of termination of employment. The right is generally subject to a number of qualifying conditions and exceptions, including that the claimant must be an employee who has been dismissed. There are specific provisions setting out which categories of employee and employment situations have the right not to be unfairly dismissed.

Redundancy Rights

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The Regulations amend the calculation of various statutory entitlements that arise on the termination of employment, including notice pay and redundancy pay for an employee on furlough. These Regulations follow an announcement from the Department for Business, Energy and Industrial Strategy that, where an employer makes a furloughed employee redundant, the employer will need to make statutory calculations with reference to the employee's regular pay rather than their furlough pay. The Regulations only apply in circumstances where the employee is entitled to statutory minimum notice only or to a notice period which is less than a week more than the statutory minimum notice period. A brief and simplified summary of the complicated topic of statutory minimum notice pay is set out below. If an employee is only entitled to that statutory minimum notice period or less than one week more than that minimum , there are provisions in the ERA to ensure that notice pay is based on normal pay.

Advice on employment rights

It also had to consider how much the claimant contributed to the actions of the employer. Law Employment Rights Act…. Law Section 10 2 Equality Act 2 Belief means any religious or philosophical belief and a reference to belief includes a…. Whilst no evidence of malice was found, it was felt by the court that unconscious bias had impacted on the decision making of the all-white panel involved in her disciplinary process. As an ET decision, this is not binding authority.

United Kingdom: Severance pay/redundancy compensation

Article Content. Article 1. The Act to protect the workers' right to work, moderate the employer's management rights, prevent damage or potential damage to the rights and interests of workers that may result from mass redundancy of workers by a business entity, and maintain the stability of society. Matters not prescribed in the Act shall be governed by other statutes.