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Redundancy Guide Part 2: Breaking the news, maternity leave, and alternative employment

Solicitor Jean Sapeta outlines the key points for practices when making staff redundant, in Part 2 of our comprehensive three-part series.

A woman on maternity leave is entitled to preferential treatment
A woman on maternity leave is entitled to preferential treatment

Communication is a vital part of the redundancy process, and should be carefully considered beforehand.

Clear timeframes should be set for communicating with individuals throughout the various stages.  Typical landmarks would be:

  • A general discussion about the fact that there needs to be a reduction in costs, which will mean fewer roles in future.
  • A discussion about ‘the pool’ and the criteria to be used for establishing it.
  • Clear communication of the timescale for considering volunteers.
  • An explanation of the timescale within which volunteers will either be accepted or rejected.
  • A date by which the objective selection criteria will be decided.
  • Discussions with individuals about how the process will apply to them.

Failure to discuss the situation with the individuals at risk is likely to render the process unfair.

The main requirements for communicating with individuals:

  • There should be a meeting, face to face, with any individual who is at risk of being selected.  They should be told at this meeting that they are at risk, and should be inform as to what the next steps in the process will be.
  • Remember, it is the post that is disappearing, and so the individual needs to be told that there are too many people for the number of roles that will remain in the new structure.
  • Once the selection criteria have been applied, the individual should be informed at another meeting that they are potentially at risk of being declared redundant.
  • It is good practice to write to individuals after each stage of the process recording what happened in the meeting, and what will happen next. People who are being told that they may lose their jobs are often agitated, and unable to take in everything that is being said at the time.
  • The option of allowing the individual to be accompanied at the meeting should be considered (although it is not compulsory).
  • Clear notes should be kept of any comments that are made at meetings and the individual should be invited to make any wriitten comments that they think are helpful in reducing the number of redundancies, or any alternative to redundancy that they might consider appropriate.
  • Once any suggestions by the employees have been considered, there should be a meeting at which the individuals who have been selected against the objective criteria are told that they have been selected for redundancy. 

Breaking the news of redundancy

Telling someone they are going to be put out of work is never easy. The person conveying the news will need support and the person receiving the news is likely to be distressed.  Consideration should be given in advance as to how to minimise the negative emotional and psychological effects. 

A practice may have decided, for example, that some of the work carried out by salaried GPs could be carried out by other clinical staff at the practice, for example practice nurses.

But of course a doctor has invested considerable time and effort in training and qualifying as a GP. They may have felt secure in that role, and the prospect of redundancy can come as a considerable shock.

Salaried GPs are more likely than, for example, administrative practice staff, to have access to formal trade union support - being articulate and educated, they are potentially able to be more challenging. It is therefore important that the process is applied objectively and with rigour. 

The salaried GP is on maternity leave can I pick her for redundancy?

Particular care should be taken when considering pregnant women and new mothers for redundancy.

If the employer finds that they simply prefer the locum carrying out the maternity cover, there is no genuine redundancy situation as there is no reduced requirement for employees in that role. Fudging a ‘redundancy’ in that situation would be sex discrimination.

It may be that there is a genuine redundancy situation, but the principal reason for the selection for redundancy is pregnancy, birth or maternity leave. That is unlawful sex discrimination. Damages for sex discrimination are unlimited and there is also the potential for a large award for injury to feelings as well as lost earnings.

It is easy to overlook the need to consult with somebody who is on maternity leave. Any selection for redundancy must be made on objective  criteria and a fair process must be followed.

Failure to follow a proper process can lead to an expensive unfair dismissal and sex (or other) discrimination claims. Absent employees must be included in the consultation process, including those absent on maternity leave.

Alternative work and maternity leave

It is a legal obligation to consider whether there is alternative work available to the individual.

A woman on maternity leave is entitled to preferential treatment with regard to being considered for alternative employment. This comes as a shock to many employers. Under Regulation 10 of the Maternity and Parental Leave Regulations 1999, an employer is under a strict obligation to offer any employee on maternity leave any suitable alternative vacancy which the employee can perform, even if she is not the best candidate. This obligation arises only if the woman is made redundant during maternity leave.

An employee who is pregnant, but not yet on maternity leave, does not have that privileged protection, but the fact of her pregnancy or any issues relating to maternity cannot be used as the reason for selecting that individual for redundancy.

Alternative employment - is there a right to try out the new role?

Failure to consider alternative jobs for employees who have become redundant in their existing roles can convert a dismissal for redundancy into an unfair dismissal. However, if a redundant employee accepts an offer of alternative employment (subject to their right to a four-week trial period) the need to pay a redundancy payment can be avoided. 

As far as alternative work is concerned, the employee must first be given notice of dismissal for redundancy.

The employer must then make an offer of re-employment before the old job ends. This can be an offer of a different job, which will start either immediately the old job comes to an end or after an interval of not more than four weeks.

If the employee accepts the offer of alternative work, he or she is treated as not having been dismissed and is therefore not entitled to a redundancy payment.

The employee has a right to try out the new job for four weeks where it is a different role, or where it is the same job but terms and conditions are different.

If the employee does not like the new job, or the new terms and conditions, they can leave during the trial period.

Where alternative work is undertaken on a trial period, the practice may wish to consider extending the four-week trial period by agreement for retraining purposes but clear records should be made of the extent of this agreement.

For the purposes of the redundancy payment they are treated as having been dismissed when the old job came to an end. 

If the offer was of ‘suitable alternative employment’ and the employee unreasonably rejects it, an employee is not entitled to a redundancy payment. However, the case law is heavily in the employee’s favour in this regard.

Redundancy Guide Part 1: Preparation, the pool system, and selection of staff

Redundancy Guide Part 3: Calculating payments, the notice period, and managing the aftermath

  • Jean Sapeta is head of London employment at specialist healthcare solicitors Hempsons

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