Q & A

Your legal questions answered

Q  Our company is going through a
large-scale redundancy programme. One employee is being particularly difficult
and is insisting we pay him the same enhanced redundancy package we offered to
redundant employees two years ago. Is he right? The package we are offering at
the moment is less, although still more than statutory redundancy pay.

A  For your employee to argue
successfully that he is entitled to the previous redundancy package, he will
need to show he has a contractual right to receive that same package.

This will depend on his ability to show that the previous package has become
contractual by "custom and practice." The legal test is that it must
be "certain" and "notorious".

The sorts of questions you need to consider are: How often the same package
has been offered to your staff; what sort of information about the package was
given to employees at the time; were the packages expressed to be discretionary
and/or capable of variation or discontinuation at any time; did each redundancy
package require individual sign off by the employees’ line managers?

If you are able to show some of these, then you may be able to resist the
employee’s claim.

Q  We are reducing the number of
sales managers from two to zero. Our current head of sales will absorb their role.
We have told both of the displaced managers what is happening but one of them
is disputing our business case. He is also refusing to enter into any
consultation with us, and is threatening to "create trouble". What
should we do?

A  If the company’s business case
looks genuine, the tribunal is unlikely to probe the commercial merits of any
decision to make redundancies.

But the issue of consultation is more difficult. If you have made repeated
unsuccessful attempts to engage in dialogue with the employee, then you are
probably justified in abandoning your efforts to consult with him.

Given the employee’s unco-operative behaviour, he is likely to have
difficulties in bringing a claim for unfair dismissal based on a lack of
consultation. Keep a record of your attempts to speak to him, so that if he
claims lack of consultation, you can rebut that.

Q  Two of our employees are in the
Territorial Army and may be called up to go to Afghanistan. If this happens, we
will need to arrange cover for them. Do we have to take them back when they

A  If your employees ask for their
jobs back within six months of the end of their military service, you are
obliged to reinstate them on terms no less favourable than before. If this is
not reasonable or practical, they must be employed in the most favourable
position and on the most favourable terms reasonable and practical.

However, if they wait more than the six months, you are under no obligation
to reinstate them. If they apply within the six-month period, then their period
of military service does not break the continuity of their employment with you.

Nicholas Moore is head of employment at Osborne Clarke

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