Are your managers trained up and ready to conduct collective consultation exercises? If you're business that is contemplating redundancies on a large scale, or having to impose pay cuts on staff, or other changes to terms and conditions, as many are of course, then as HR professionals you will be aware that it will be the managers at the sharp end, required to consult with staff and deliver those difficult messages. But are they up to the job? After all, they have considerable legal obligations to discharge and, on a personal level, it will probably be stressful and difficult for most of them. Clearly they should be trained up but, given the pandemic, with decisions being taken very quickly, is there time for that? We are seeing many businesses, viable on minute, suddenly finding their business model has changed. Result? Pay cuts necessary, or even mass redundancies, but no time to plan for the consultation exercise. The Acas guidance on this is thin to say the least. The section 'Support your staff and plan for the future' simply says 'you should think about how to support managers who are breaking the news, the people leading the consultation, and the employee representatives' but what does the training look like and what does it cover? We will come on to that shortly but first the benefits of the training. On the Acas website, alongside the guidance, they have a podcast called 'Redundancy: what to remember and what to avoid' where two Acas advisers talk through various aspects of the consultation. One of them, Faye Law, is asked to give an example of where it went well:
Acas Podcast: Redundancy: what to remember and what to avoid':
Transcript (extract): Faye Law: “Yes, I worked with an organisation recently that was unfortunately facing the loss of quite a proportion of its workforce and they did the exercise well in that they jointly trained the staff representatives and the management representatives, both around the law on redundancy in consultation, but also on how to work together and communicate collaboratively and as the process has gone on, we can see that management was sharing information, gaining the trust and the joint working then of the staff who were at risk and the staff, although in that awful position themselves of fearing loss of their own jobs and their colleagues jobs, could genuinely see and believe that management were having to make difficult decisions and they could understand the reasons why. There was one particular group of staff that were looking at losing half of their team. Clearly that was a very difficult situation for them but they understood management's proposals, they, they'd seen the financial information, they'd seen the projections on football in the business and they really understood that there was a need to make those cuts. They also looked at work in their sector and realised that in their particular job line, there wasn't a lot of local employment for them. So collectively, that group of staff got together and agreed to vary their contracts and cut their hours by 50% and that's a decision that had a huge impact for each of them personally but they decided to stay together as a group and take that impact, rather than become unemployed. The employer had gained the trust in that and reinforced that trust by negotiating that as a temporary reduction in hours - I think it was for six months period - and that way the staff could retain some employment, albeit at a huge cost, and the employer then retained the flexibility in the workforce so that in six months time, things do begin to pick up because it's also hard to predict right now, they wouldn't have to go through future costs of recruitment. It was a huge decision for those staff involved and a dramatic one and it has worked out well, for that particular organisation. It is not going to be suitable for everybody, not all members of staff could possibly even contemplate that, and I know the unions have cautioned very strongly against current financial circumstances driving down people's terms and conditions. It was just that in this particular institution, there was a high degree of trust, and people wanted to remain there.”
So, in that example the employer had trained both the employee reps and the managers and, as you would expect, that is something we, at Pinsent Masons, have a lot of experience of and, right now, a number of clients are wanting help in this area, planning ahead. In the past it was mainly training up the reps but that is changing. Trish Embley is head of client training and she joined me by video link from Birmingham:
Trish Embley: “So what we found in terms of training is that over the years we've been asked to train employee reps who are going to take part in redundancy consultation because it is important that they carry out their role properly, but more and more, I think clients are understanding that the managers who have to deliver this message, they need training as well, they need to have their confidence built, they need to understand the basics of the law so that they understand what consultation is about, what its purpose is, and what the key requirements are so they can keep referring back to that if they're challenged or if they're asked any questions. So really, the purpose of the training we do is to reassure and to just give them some key areas to focus on. So I tend to think about that as four key areas, and I'll talk in a minute about the challenges of being in another lockdown and how they can carry out these meetings and share this information remotely. So I think the first thing I'd say to any manager is they have to own the message that they're delivering, they have to feel comfortable with it. So if they're in any doubts about the business proposals, they must ask. I know a lot of HR teams do put together a briefing pack for managers that they can refer to but I think they themselves shouldn't be scared to ask questions and to probe because what we don't want is them presenting to employee reps saying well what they're telling me is, they have to be the voice-piece for the business, they have to be able to back up with what they're saying, this is the whole rationale behind these proposals. The other thing I'd assure them on is they shouldn't feel too intimidated that they've always got to have the answer. Now, obviously, in the initial meeting, there might be lots of questions, but it's totally okay for them to say, at this stage, I don't know or at this stage that hasn't been decided but we will get back to you as soon as we can. Or even, you know what, I don't know the answer to that, I'm going to have to take that away and ask the question. The important thing is that the reps feel that we're being honest, transparent and open. We're not we're not trying to keep anything from them and honesty is often therefore the best policy. I think the most important thing from a lawyer's point of view is that the message is clearly driven out that these are just proposals at this stage. So, we do not want any evidence, whether it be in writing or otherwise, that what information is being provided is set in stone and I think the managers should be prepared for a little bit of cynicism on this. They might get some reps, maybe union reps or employee reps saying, well, what's the point of all this, you've clearly made your mind up, and that's where they've got to really try and engage the reps and say no, hang on, this is what we're doing, we have with a heavy heart hat to come up with these proposals but no decisions will be final until we have input from you. Then I think it's probably worth pre-empting some issues we may have seen with certain clients, just going over with the reps what their role is and what it isn't. So we hear from some clients that some reps can come back with their own agenda or their own personal views but, of course, their role should be to be the mouthpiece for the people they represent. So it's good for the managers to go over that and say now what you need to do is go to those that you represent and solicit their views and feed them back to us so that we can look at the proposals on the table and see if there's any scope for flexibility, any fresh ideas, any thoughts that you might have as to how we can either avoid, or how we can mitigate these proposals. So I think the challenge therefore, for the reps and for the managers, is how they do this if they can't have face to face meetings. So I think there needs to be support both for the managers and for the reps in terms of what facilities are available to them. If it is virtual platforms, are they happy using them? Are they okay uploading information because as lawyers we want evidence of what has been shared, what information has been given. So for example, is the manager happy uploading a slide presentation? Do they need another host facilitator there? You can keep an eye on the chat box. They don't want people constantly interrupting them until it's Q&A time, are they happy that they can put people on mute and take them off mute? Similarly for the employee reps, how are they going to get this information out, and the more helpful we can be to them and say, well, if they have access to laptops, then we can have Teams meetings or some virtual platform, if not maybe people can join by mobile phones, or if we have to rely on post we can schedule that into the timing as well. So, obviously, when we're talking about remote meetings, a virtual world, there is an extra layer of support, a little bit more effort that needs to go into it, both for the managers and the employee reps."
If you would like further details on this type of training we would be happy to provide it for you. Trish Embley’s details are there on screen for you, or you can hit the ‘Make an Enquiry’ tab on the Outlaw website.