Monday, April 16, 2012

Subsections g, h and i of s188(4) Trade Union and Labour Relations (Consolidation) Act 1992

I realise this may seem an uninspiring title for a blog post - but this is a niche blog (http://www.morningstaronline.co.uk/index.php/news/content/view/full/81712) and if discussion about how to use the intricacies of employment law to protect workers' interests in a redundancy situation doesn't float your boat, well, look away now.

I have blogged, albeit briefly, before about the important changes to the law on redundancy consultation which (by virtue of the Agency Workers Regulations 2010) came into force on 1 October last year (http://jonrogers1963.blogspot.co.uk/2012/03/section-188-and-agency-workers.html?m=1).

I am blogging again, having been taken aback by the profound ignorance demonstrated to me by a senior Human Resources practitioner in the private sector, who told me that there were no subsections (g), (h) and (i) of subsection 4 of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. I won't identify the company concerned (for obvious reasons - although whether I continue to observe this self-denying ordinance is in their hands not mine).

What these (relatively) new subsections require of an employer proposing to make 20 or more redundancies at one establishment within a 90 day period is that, in addition to the information which they have had to provide in the past, they must now provide information about all the agency workers they have "working under their direction", where they are working and what they are doing. The (rather obvious) point, given the purpose of statutory redundancy consultation as set out in s188(2), is to see if their are agency workers doing work which could provide suitable alternative employment for redundant employees.

The precise wording of the subsections are as follows (this is the new additional information which employers have to provide when making 20 or more redundancies);

"(g)the number of agency workers working temporarily for and under the supervision and direction of the employer,

(h)the parts of the employer's undertaking in which those agency workers are working, and

(i)the type of work those agency workers are carrying out.".

Let me give three examples of how trade unionists can make use of these new requirements.

First, if your employer is making redundancies to implement this year's budget - they cannot even commence the formal 30 or 90 day consultation period until they have provided this information. Not all employers are collating this sort of information centrally so you can buy valuable time to save jobs (or give yourself some leverage to improve severance terms).

Secondly, since (for the purposes of section 188) "redundancy" also includes situations in which an employer dismisses and offers re-engagement in order to force through detrimental changes to conditions of service, you can also insist upon the information required by subsections (g), (h) and (i) as a prerequisite for formal consultation in those circumstances (which may also flag up an argument that they could save more by reducing reliance upon agency workers than by attacking your conditions.)

Thirdly, you can point out to any reasonably sane public service employer that - since they will now need to provide this information whenever they propose redundancies - and, since George Osborne will ensure that this is not a rare occurrence, they might as well provide the information routinely anyway. Your employer ought to be as keen to reduce agency fees as you are.

What worried me about my interaction with the HR bod at the (as yet) unidentified private company was that, if they could deny knowledge of the legislation more than six months after it had come into force - did that mean no one else from our side of the table had raised it with them?

If there are union reps out there (or even paid officials) who aren't up to speed with subsections (g), (h) and (i) then the likelihood is that we, as a movement, are missing opportunities to delay and reduce redundancy dismissals, and maybe even to obtain protective awards. Given the paucity and inadequacy of our legal rights it seems a shame not to use to best advantage such rights as we do have.

(Hard as this may be to believe) I sometimes face a modicum of criticism within our trade union. One reason for this is when I issue advice or information which it was really someone else's job to send out.

Well, I think it should take less than an hour to draft a simple circular to branches outlining the provisions of subsections (g), (h) and (i) and offering some suggestions as to how to make use of them. I have raised this with the appropriate officials some weeks ago. I'll wait one more week before I send anything more out.
Sent using BlackBerry® from Orange

1 comment:

Anonymous said...

I find this rather interesting as we have just gone in to consultation on redundancy. We have been told that our work is being relocated to another site and basically our factory is closing and there's no jobs at the other site. But they are sending agency workers there to finish the work off what ee are sending just to get the job done quicker.