In the UK, if an employer proposes to dismiss 20 or more workers over a period of 90 days or less, workers must carry out what is known as a « collective consultation ». USDAW v. Ethel Austin (UKEAT/0547/12/CN) (commonly referred to as the Woolworths case), decided in April 2015, concerned the employer`s collective duty to consult when multiple dismissals are triggered. The CJEU ruled that the threshold should be set at 20 redundant workers in a company and that redundancies should be carried out independently of each other. This obligation to consult on the part of the employer could also benefit workers who might be affected by the planned redundancies, i.e. not only workers on redundancy. This means that employees affected by the dismissal of their colleagues can also benefit from a consultation. If a company wishes to dismiss 100 or more workers than those made redundant, the consultation must start 45 days before the dismissal takes effect, and if 20 to 99 workers are dismissed, the consultation period set by the CJEU is 30 days. Most readers will have an idea of what the term « dismissal » means when it comes to employment.
However, at FindLaw, we like to dissect legal concepts and want to provide a legal explanation of commonly understood terms, and in this case, it`s about defining common law redundancy. While Justice Bray`s description of redundancy may be considered a classic definition, courts have generally not been willing to provide a complete definition of the term. With this in mind, numerous case law since Adelaide Milk Supply Co-Op Ltd has described some of the following circumstances that may lead to dismissal: In short, the term « dismissal » in the context of labour law refers to a scenario in which an employer downsizes when one or more specific jobs are no longer needed. that is, they become « superfluous ». Such situations may arise due to factors beyond the control of the employee himself, such as the closure of the business, the need to reduce the employer`s costs, the emergence of artificial technologies (AI) or other technologies that have made this work superfluous, the job no longer exists, or the ownership of the company changes hands. Thus, in most cases, the termination does not reflect the employee`s ability to do his or her job, but is caused by ancillary factors. In most cases, in addition to closing the business, employers must provide adequate justification for terminating an employee`s position. It is important to note that dismissal can only occur when the position itself is declared superfluous, not when an employee is replaced by a newer employee. Colloquially, the terms dismissal, reduction of staff and dismissal are used synonymously. They can be forced or voluntary, in terms of firing employees of a company.
In the case of voluntary layoffs, employers typically offer incentives such as severance pay or gardening leave. Voluntary dismissals save the employer from having to decide which employee to dismiss. In the event that voluntary layoffs fail, forced layoffs use a common « last in, first out » (LIFO) technique, in which employees who have spent the least time in a company are fired first. Other factors that may be used in assessing termination opportunities include factors such as attendance records, disciplinary records, an employee`s level of job performance, the employee`s previous experience, or their contribution to the company as a whole. It is up to the employer to apply the termination test and assess that it needs fewer workers to perform a particular job, not just work that is being reduced or hired.