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Branches can protect members' rights by following the legal processes. It is vital to ensure the law is being observed.

Questioning a council's decision-making process can be a useful delaying tactic, and also give your campaign momentum.

Most of the information here comes from the Labour Research Department booklet Redundancy Law: A guide for union reps - see useful links for details. Other sources of legal information are found throughout the pack, for example, in relation to the calculations concerning redundancy pay and the LGPS.

Legal sources
The law below applies to England, Scotland and Wales. Northern Ireland has its own legislation, although the provisions are similar.  Both statute and case law determine redundancy obligations and rights. The main legislation governing redundancy includes:

• lThe Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) l The Collective Redundancies and Transfer of Undertakings (Protection of Employment)
• Regulations 1995 (SI 1995/2587) l The Employment Rights Act 1996 l The Collective Redundancies and the Transfer of Undertakings (Protection of Employment)
• (Amendment) Regulations 1999 (SI 1999/1925) l The Collective Redundancies (Amendment) Regulations 2006 (SI 2006/2387)

The Employment Equality (Age) Regulations 2006 which came into force on 1 October 2006 have also affected redundancy rights. For example, they remove previous upper and lower age limits (of 65 and 18 respectively) for statutory redundancy payments. The existing age bands used to calculate statutory redundancy pay are unaffected.

Definition
A genuine redundancy only arises, for the purposes of redundancy pay, in the following situations (Employment Rights Act 1996 s 136):

• the employer has ceased, or intends to cease, to carry on the business for the purposes of which, or in the place where, the employee was so employed; or
• the requirements of the business for the employees to carry out work of a particular kind, in the place where they were so employed (or otherwise), has ceased or diminished or are expected to cease or diminish.

The definition is therefore quite wide. Redundancy can occur when:

• the workforce is reorganised and there is less work
• changes in conditions mean the old job is quite different from the new one
• the business relocates l an employer puts work out to contract.

The test for redundancy is whether the employer requires fewer (or no) workers to do work of a particular kind, and not just whether the work itself has ceased or diminished.
The primary reasons for making redundancies are the reorganisation of working methods and efficiencies. Confusion may arise because 'making someone redundant' can be used as another way of saying that an employee is being dismissed for some reason other than redundancy.

Individual and collective consultation
Individual consultation is necessary for all redundancies and the law requires collective consultation in the multiple redundancy situations referred to below. Organisations should follow the stages of their own redundancy procedure.

As an absolute minimum before 6 April 2009 organisations must follow the three key steps of the the statutory disciplinary and dismissal procedure. From 6 April 2009, organisations should follow the stages of their own redundancy procedure.

As a bare minimum, this should encompass the stages referred to here and adhere to the ACAS guidance on handling redundancies (See the advisory booklet Redundancy Handling, at acas.org.uk). If the redundancy process began before 6 April 2009 and continues after 6 April, there are important transitional rules which apply to lodging any grievances associated with the redundancy process. Appropriate advice should be sought on what procedure to follow.

Consultation should include:

• the reason for the redundancy dismissals
• why and how individuals have been selected
• possible ways of avoiding redundancy
• possible alternative work.

Collective consultations (the duty only arises where 20 or more redundancies are proposed) with recognised trade unions or elected representatives must start at least 90 days beforehand for proposed redundancy dismissals of 100 or more employees, and at least 30 days before notification of redundancies for 20-99 employees.

In cases where collective consultation is required, it must be completed before notice of dismissal is given to any of the employees concerned. The maximum compensation that can be awarded if an employer fails to consult is 90 days' pay.

ACAS says that as good practice, "employers should consult at an early enough stage to allow discussion as to whether the proposed redundancies are necessary at all. The consultation process should precede any public announcement of the redundancy programme and the issue of notices of termination."

The law requires meaningful consultation - it is not enough only to inform. Section 188 (4) of TULRCA specifies that the employer must provide the following information in writing to the appropriate representatives:

• the reason for the redundancies
• the numbers and description of employees whom it proposes to make redundant
• the total number of employees of any description
• the selection procedure to be used
• the proposal for how the redundancy dismissals are to be carried out, including the timescale
• the proposed method of calculating the amount of any redundancy pay, if this is more than the statutory minimum

Consultation must be real and not a 'sham', according to an Employment Appeal Tribunal decision which said that issuing redundancy notices by letter half an hour after a meeting with the unions suggested that consultation was not meaningful. A local authority had already decided on the number of redundancies it was going to make and made it obvious that it was not going to consider any alternative. This was not genuine consultation (Middlesbrough BC v T&G and UNISON EAT/26/00).

Seek legal advice from your regional office if you think proper consultation has not taken place - an action may be available at an Employment Tribunal. The complaint must be lodged either before the last of the dismissals takes effect or within three months after the last of them. In exceptional circumstances, the tribunal can allow a longer period for a complaint to be lodged but you should never rely on this exception!

In many branches where redundancies have been announced so far, the 'genuineness' of the consultation can be called into doubt. The decision-making process can be analysed in further depth by making a Freedom of Information Act request or by invoking the Information and Consultation of Employees Regulations.

Selection
In the earlier stages, councils should carefully determine the initial selection pool for redundancy. Unless there is a customary arrangement, the council should identify the group of employees who may be made redundant at the planning stage. This will usually be those who undertake a similar type of work in a particular department, or work at a relevant location, or whose work has either ceased or diminished, or is expected to do so. These will be the 'selection pool'.

Where there is a choice between employees, selection must be based on objective criteria, which may include:

• length of service
• attendance records
• disciplinary records
• skills, competencies and qualifications
• work experience
• performance records

Following the introduction of age discrimination legislation, 'last in, first out' (LIFO) is now dubious as a selection method. It can also discriminate on grounds of race, gender or disability if your employer has made recent moves to ensure a more diverse workforce. Case law holds that LIFO may still be a relevant as part of a wider range of selection criteria, however it must not be used as the sole selection method, and the council must be able to justify its use. In addition, LIFO remains an unsatisfactory way of retaining the most competent staff.

Tribunals should look favourably on selection procedures based on a points system which scores each employee against the relevant justifiable criteria. However, to avoid discrimination, great care must be taken in choosing and applying the criteria. Unfairness can be indirect or overt. For example, selecting part-timers in preference to full-timers could be indirectly discriminatory if it affects a high proportion of women.

ACAS points out "a dismissal may also be considered unfair where the reason or principal reason is redundancy but the circumstances apply equally to other employees who have not been selected. Employers need to show that in selecting a particular employee they had compared him or her in relation to the agreed selection criteria with those others who might have been made redundant and that, as a result, it emerged that the employee was fairly selected."

Notification
The employer must give the Department for Business, Enterprise and Regulatory Reform at least 90 days written notification if they are making 100 or more workers redundant, and at least 30 days for 20 to 99 employees. The department does not have to be notified for less than 20 employees.

Unfair dismissals
In law, there are many reasons which are automatically unfair for selecting employees for redundancy, including:

• trade union membership (or non-membership)
• part-time status
• pregnancy or maternity-related reasons
• gender, sexual orientation, marital status, disability, race or religion.

A dismissal may also be a normal (ie not automatic) unfair dismissal if there is not a genuine redundancy or if the selection criteria are too imprecise or subjective. And although the reasons for redundancy may be completely fair, it may still be judged unfair on procedural grounds such as lack of consultation.
Dismissing an elected representative will be automatically unfair if it is wholly or mainly related to the employee's status or activities as a representative. In addition, employers must allow representatives access to affected employees.

Appeals
Employees dismissed by reason of redundancy must be given the opportunity to appeal their selection for redundancy.

Time off
The law requires employees be given paid time off to look for work during the final notice period.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are designed to protect employee's rights on the transfer of an undertaking. TUPE is a complex subject and a full explanation of its many elements is beyond the scope of this short factsheet. Any person who requires further information on TUPE should get in touch with their regional office.

TUPE, in simple terms, provides that where there is a service provision change or change of undertaking from person A to person B, individuals who were employed by A 'immediately before the transfer' automatically become employees of B from the time of the transfer, on the same terms and conditions as they previously held with their old employer - A.

Therefore, as a result of the operation of TUPE, an employee who is assigned from employer A to employer B will not have their contract terminated. It naturally follows that they will not be entitled to a redundancy payment on transfer. TUPE does allow an employee to refuse to transfer their employment but if an employee elects to take this option they may not get a redundancy payment (employees should seek advice on this issue before making any election not to transfer their employment). Therefore, if an employee transfers their employment, they will not be entitled to a redundancy payment.

However, there are some occasions, where a redundancy payment will be made. We have seen examples of where an employer seeks to dismiss employees, by reason of redundancy, prior to the transfer taking effect. The TUPE Regulations are clearly designed with the specific purpose of protecting employees on transfer and any employer which wishes to dismiss prior to a transfer must ensure that proper process is followed and that the dismissal is not simply designed to avoid a TUPE transfer from taking effect. If it is a genuine redundancy and the proper process has been followed an employee will be entitled to a redundancy payment in two circumstances involving TUPE:

1. If the employee is dismissed by the transferor in advance of the transfer because of the fact that the transferor is to go out of business in the place where the employee is employed or because the work is genuinely not required anymore (note the need that the requirement be genuine and not a sham designed to avoid the impact of TUPE); or
2. following the transfer, the transferee dismisses the employee because the business is closing or because the work is no longer required.

It is important to analyse proposed redundancies in circumstances where a TUPE transfer is imminent so as to ensure that an employer is not seeking to make redundancies, or dismiss employees generally, to avoid the obligations which arise under TUPE to protect employeeÕs terms and conditions.

With the increasing clamour to cut public services, there may be more and more occasions in which employees are asked to take a pay cut in an effort to avoid redundancy. Some employers may even take the drastic step of seeking to impose changes in terms and conditions without the consent of the employee.

The advice in this fact sheet is general and you should always take advice from your branch where an employer is seeking to reduce your terms and conditions with or without your consent.

A. Imposition without agreement - breach of contract.
Generally, if an employer imposes changes upon employees' terms and conditions without the employees consent, they will be acting in breach of contract. In most cases, continued performance by an employee of their contractual duties without protest, after the altered terms and conditions have been imposed, will be deemed to be implied acceptance of the new terms and conditions. Therefore the original breach of contract will have been waived.

Any implied acceptance by members will severely weaken the prospects of bringing successful breach of contract claims. Branches will have therefore been advised to seek immediate advice from their regional organiser if an employer purports to impose such changes.

It is not as simple to say that any variation of a contract, without the consent of the employee, will enable the employee to end the contract and sue for unfair dismissal. The law is more complicated than this and therefore any proposed change should be discussed with your region as a matter of urgency.

B. Imposition by dismissal and re-engagement.
This is probably the most common method of imposing contractual change. Mass dismissals by giving the amount of notice required by the contract of employment, together with an immediate offer of new terms and conditions to facilitate the implementation of the reduced terms and conditions, have been known to occur. We must be on guard to ensure that members' rights are protected in this situation.

It is not always the case that these types of impositions will enable an employee to bring a successful unfair dismissal claim and therefore advice should be sought immediately where we become aware of a dismissal and re-engagement situation.

Conclusion
The advice in this guidance is necessarily general and in circumstances where reduced terms and conditions are sought to be imposed you should immediately consult with your regional office to ensure that appropriate and effective responses are developed to ensure the protection of our members' rights.

It is best to draw up a formal procedure well in advance of any potential redundancy situation - to allay fears and enable fairness and consistency. The Advisory Conciliation and Arbitration Service (ACAS) advises branches (and employers) to ensure such a procedure is in place and that it includes at least these elements :

• An introductory statement of intent towards maintaining job security, wherever practicable
• Details of consultation arrangements with any trade union or employee representatives
• Measures for minimising or avoiding compulsory redundancies
• Redeployment
• Voluntary redundancy
• General guidance on the selection criteria to be used where redundancy is unavoidable - compulsory redundancies
• Discretionary arrangements under LGPS
• Compensation
• Notice
• Appeals procedures
• Counselling
• Assistance to redundant employees

Our model agreement also includes negotiation points or favourable clauses from existing agreements, to help branches negotiate a new agreement or renegotiate elements of an old one.

Make sure the document is reviewed regularly and any changes consulted upon.

Model redundancy agreement [PDF]

It is illegal to discriminate against someone on grounds of gender, race, disability, age, sexual orientation and religion or belief. The public sector equality duties go even further - they require public bodies have due regard to the need to positively promote equality:

• for staff and service users
• in the areas of race, disability, and sex (including equal pay and transsexual people on the grounds of their gender reassignment)
• in all their policies and practices.

Private contractors providing public services are also required to ensure gender and disability equality, but only in so far as they provide public services.

This might seem a bit irrelevant where jobs are being cut, but equality can play a big role in campaigns against redundancies, and in redundancy situations. Any proposals to make staff redundant or to cut services must have an equality impact assessment carried out on them by the council, school or other public body. This gives UNISON a strong tool to use to minimise redundancies, ensure members are treated equally, and to ensure the union and the local community are fully involved in any proposals.

Some groups of workers may be more likely to be discriminated against in redundancy situations (disabled workers and women, for example, or black and young workers).

For instance, cutting or outsourcing social care services may have a negative impact on ensuring equal pay for women workers. Creating a shared services centre in an out-of-town business park with poor transport links may disadvantage disabled staff.

Some groups may suffer multiple discrimination. For example, residential care cuts may specifically hit elderly women as service users. Cutting services to poorer parts of an area may also have an adverse impact on black and minority ethnic workers in deprived communities.

It is important to keep an open mind because there may be unexpected impacts. If a proposal could make things worse for some groups, the authority has to look for ways to minimise its impact.

A quick guide to equality impact assessments
Employers carry out equality impact assessments, not the union. UNISON's role is to ensure rigorous data collection, methodologies and conclusions. While the law only requires the assessment to include gender, race and disability, it is good practice for it to cover age, sexual orientation and religion or belief as well.

Data collection
An equality impact assessment is not rocket science. It is a matter of looking at available data and other information, consulting with people directly affected, and asking hard questions about the impact of a change. The Green Book contains a sample equality impact assessment at part 4.11, Section 1-6. The Scottish Government has published a helpful equality impact assessment Tool that be accessed at: www.scotland.gov.uk

An equality impact assessment should use any available data to examine the impact of redundancies on service users and staff. Major changes may require collecting new or specific data to assess the impact on a variety of issues or workers. It is common for employers to have data on the age, sex, and race of the workforce. But a lack of data should not stop an equality impact assessment looking at possible implications.

Try to ensure UNISON is represented on the working group carrying out the equality impact assessment, and that the final result is made public. Members and service users who may be specifically affected should be consulted.

Assessing the redundancy impact

The main assessment is whether the data shows the redundancy will have a more negative impact on one specific group (staff and/or service users) than another. UNISON can use this process to build its links with the local community too.

The impact on service users

• Which service users will be affected by any cuts? Will any groups be specifically affected? How will this negative impact be reduced?

The workers at risk

• Is the makeup of the workforce under threat different from the workforce overall? Would redundancies have a negative impact on one group in particular? Have alternative options been compared and considered to minimise any discrimination? Can the selection pool be altered? Do all affected workers have genuinely equal opportunities for retraining or redeployment?

The selection criteria

• Are the criteria (or the selection matrix) for determining who will be made redundant transparent and fair? It is unlawful to discriminate against fixed-term or part-time workers, and against workers for trade union activities.

What if the equality duties are ignored?

The new Equality and Human Rights Commission can issue an enforcement notice on the authority if it fails to comply with its statutory equality duties.

Equality duties checklist

• get a copy of your employer's current equality scheme(s)
• insist your employer carries out an equality impact assessment of any changes affecting services to the public or terms and conditions of staff
• get relevant members (women/disabled/black members) together to discuss how they can get involved in their employer's consultation/involvement exercise to improve the scheme
• feed back any examples of good practice to share with other branches
• recruit as many members as possible.

Where can I get more information?

UNISON has produced a short information leaflet on public sector equality duties (stock no. 2667 from UNISON communications - email: stockorders@unison.co.uk) and full guide (stock no. 2645), which is also available on the web at:
unison.org.uk/file/equalityguidance.pdf [PDF]

Councils are saying their budgets are under pressure, putting jobs at risk and threatening services.

It's important to have a proactive approach to understanding your council finances. Don't wait until the council is setting the budget - it can be too late, especially if the key financial decisions were made months or years beforehand. Good forward financial planning can identify threats faced by members at an early stage, giving branches more time to influence the final outcome.

This factsheet looks at financial information. It tells you what documents to ask for, what they might tell you, and when to engage.

What documents should branches ask their employer for?

• the latest medium-term financial strategy
• the budget for the current financial year
• the budget and outturn report for the last financial year
• the latest statement of accounts
• single outcome agreement (Scotland)

What do these documents tell you?

Medium-term financial strategy: Every council now has to have a medium-term financial strategy. In Scotland there will usually be a medium term financial plan linked to the single outcome agreement. The medium term financial strategy will cover a minimum of three years, although some cover longer periods and look forward five or even 10 years. It is usually updated each year.

The strategy should include all the key assumptions about the future that are critical to UNISON members, such as assumptions about inflation, pay and pension contributions and whether jobs might be at risk. There will also be assumptions about the levels of future council tax increases, the cuts and/or savings that the council plans to make, and the contributions to or from reserves. The strategy may also give UNISON earlier notice of plans for privatisation, shared services and PFI schemes.

This year's budget: This is the detailed budget for this year. It tells you about the expenditure plans, usually by service area, whether the council plans to put money into reserves or is balancing the budget by using reserves, and how much the council expects to get in government grants, business rates and council tax.

Last year's budget and actual outturn: This enables you to compare the detailed plan for last year and what actually happened. For example, it should show you which areas underspent and overspent and whether the council used reserves or put money into reserves.

Statement of accounts: The statement of accounts is published each year. It is the official set of accounts for the council. It will provide details of:

• the accounting policies
• the income and expenditure account - the notes to the accounts or a separate explanation may provide more details
• a statement of the movement on the general fund balances
• details of the movements in statutory reserves, reserves needed to comply with proper accounting practices and earmarked reserves
• a statement of the capital reserves, including details of the level of usable capital receipts - these are capital receipts available to finance new capital expenditure
• details of any provisions - a provision is an amount set aside in one year for liabilities orlosses which are likely or certain to be incurred, but the amounts or the dates on which they will arise are uncertain
• details of the collection fund account - this is a statutory account for billing authorities. It shows the transactions of the billing authority in relation to non-domestic rates and council tax, and how sums have been distributed to preceptors and the council's own general fund
• details of the direct services trading accounts and whether each traded at a surplus or deficit
• details of the housing revenue account - local authorities which have retained their housing stock are required to maintain a separate account - the housing revenue account - which sets out the expenditure and income arising from the provision of housing. Other services are charged to the general fund
• details of associated company interests and holdings. Some councils maintain investments and/or interests in companies. These are usually listed in a note to the accounts
• details of the Local Government Pension Scheme
• the number of employees whose remuneration (excluding pension contributions) was £50,000 or more - set out in bands of £10,000
• the total amount of members' allowances paid in the year ending 31 March

Single outcome agreement (Scotland)
Every Scottish Council has a single outcome agreement negotiated with the Scottish Government. This agreement outlines the strategic outcomes the council is committed to achieving in return for Scottish Government grants. Redundancy proposals should be checked against this agreement to identify any inconsistency. For example redundancy proposals for nursery nurses may be incompatible with a single outcome to expand early years provision. For more details on the separate Scottish local government financial systems and how to analyse them consult the UNISON Scotland local government cuts toolkit at:
UNISON Scotland LG campaign pack

When to engage?
The medium-term financial strategy should be a regular item on the agenda of the joint negotiating body. Where possible, branches will want to discuss the proposed strategy before the council adopts it. That way, there should be fewer surprises!

Suggestions for negotiators

• Make it standard practice for the council to supply UNISON with a copy of the draft and final medium-term financial strategy, the statement of accounts, the draft and final budget for the following financial year and the budget and outturn report for the previous financial year
• identify when in the financial cycle councillors usually agree the medium-term financial strategy and which body agrees it (different councils adopt different approaches)
• seek formal consultation on the proposed medium-term financial strategy before it is agreed by the council
• place the medium-term financial strategy on the agenda of the joint trade union/employer negotiating body at the most appropriate time
• negotiate a 'no compulsory redundancy' agreement if one does not exist
• review the council's current redundancy policy - and improve it where possible

Why is capitalisation important?

If there are redundancies, UNISON wants to get the best deal it can for members. Councils can provide a better deal by capitalising.

What is capitalisation?

Capitalisation is when revenue costs are met from capital funds (existing capital receipts, capital receipts from the sale of assets, or borrowing).

The rules say that councils can spend revenue on capital projects but they can't spend capital on revenue projects unless they get permission from the secretary of state. This is called capitalisation.

As an example, in England in 2008/09, the secretary of state allowed 28 councils to capitalise over £36m of their redundancy costs. Technically this is called being issued with a "capitalisation direction". Eighteen of those councils also capitalised pension costs. There are separate arrangements in Scotland that have not been finalised, for 2009 onwards, but they will involve applications being made to the Cabinet Secretary for Finance.

What can be capitalised?

It may be possible for a council to capitalise redundancy costs and payments into pension funds.

1. Redundancy payments

The guidance says:

It is unlikely that the secretary of state would grant a capitalisation direction for anything other than statutory redundancy costs. This means that a direction is unlikely to be issued for enhanced costs.

Nor is a capitalisation direction likely to include the lump sum element of the pension payment arising from compensatory added years, or any payments the authority makes into its pension fund in order to eliminate deficits resulting from premature retirements. Statutory redundancy costs are those costs required and calculated in accordance with Part 11 of the Employment Rights Act 1996 (see in particular section 162).

2. Payments into pension funds

The guidance says:

In respect of an application for the capitalisation of a lump-sum payment into a pension fund to remedy a deficit, the cause of the deficit will need to be explained and the application will need to be accompanied by the LGPS pension fund's last triennial actuarial valuation report. Applications should also be supported by the relevant pension fund's funding strategy statement.

What are the rules?

The guidance says that separate 'affordability tests' will normally be applied to applications for capitalisation of redundancy costs and payments into pension funds.

Affordability test

The costs to be capitalised must exceed both (a) 5% of available reserves and (b) 0.25% of budgeted expenditure for the year in which the expenditure is incurred.

Applications to capitalise payments into pension funds are also likely to have the following conditions applied:

(a) capitalisation is unlikely to be allowed unless the council is able to demonstrate that it has taken all the steps allowed under the Local Government Pension Scheme, including 'spreading' and 'stepping' options

(b) capitalisation is unlikely to be allowed if the funding difficulties arise from a decision by the council itself either to make provision over a shorter period than is recommended by its fund's actuary, or to exceed a limit on early retirements agreed as part of the actuarial valuation inputs

(c) in addition, any directions issued are likely to require the capitalised payment into the fund to be met only out of capital receipts and not by borrowing.

When do applications have to be made?

In principle, applications may be submitted at any time but the Department for Communities and Local Government 'strongly encourages' applications by 15 December in the financial year in which the expenditure is to be incurred.

Two gate process

Communities and Local Government uses a 'two gate' process.

Gate 1

Applications are considered against the criteria for capitalisation and applicants will be sent a 'minded to' letter (normally within 15 working days) confirming which items appear to meet the capitalisation criteria. At this stage no formal capitalisation direction is issued and there is no guarantee of how much the council can capitalise but the council is through to the Gate 2 assessment.

Gate 2

After 30 December, final decisions are taken on all applications made by 15 December and which have passed Gate 1. The overall total capitalisation is considered in the context of the macroeconomic implications. Formal directions should be issued by 29 January 2010.

Applications for the current financial year received after 15 December will be considered on or after 29 January, taking account of the level of capitalisation which has already been agreed and any macroeconomic risks.

All employees who have worked for the same or an associated employer for at least two years are entitled to statutory redundancy pay, regardless of the hours they work each week. This is the minimum that workers should receive, but employers can provide more. The payments under the statutory scheme depend upon the worker's age and length of service.

Use the following calculations to work out how much money each member is owed:

• 0.5 week's pay for each full year of service where the age of the member during the year is less than 22
• 1 week's pay for each full year of service where the age of the member during the year is 22 or above, but less than 41
• 1.5 weeks' pay for each full year of service where the age of the member during the year is 41+

There is a maximum figure for weekly pay that is revised in February each year. From 01 October 2009 it rose to £380.

Some illustrative examples:

• If you are 25 with seven years of service, you will be entitled to five weeks' redundancy pay. The entitlement is based on 0.5 week's pay for each completed year of service between age 18 and 22 and one week's pay for each completed year of service between age 22 and 25
• If you are 38 years old and have 12 years of service, you will be entitled to 12 weeks' redundancy pay. The 12 weeks is based on one week's pay for each completed year of service between age 26 and 38
• If you are 49 years old and have 15 years of service, you will be entitled to 19 weeks' redundancy pay. The 19 weeks entitlement is based on one week's pay for each completed year of service between age 34 and 41 and 1.5 weeks' pay for each completed year of service between age 41 and 49

Enhanced redundancy pay - employer discretion

There are three ways in which an employer can adopt a policy that is more generous than the statutory scheme, in many local authorities this will be the norm.

1. Entitlement - who the discretion is applied to

Your employer has discretion to pay enhanced redundancy payments calculated using both age and length of service. This can be paid to all employees, including those with less than two years' service, or only to those employees with two or more years of service.

2. Multipliers

The employer has the discretion to multiply the number of weeks pay by the same multiplier for each group.

For example, if the multiplier is 3 the number of weeks are trebled, so the payments would be:

• 1.5 weeks' pay for each full year of service where the member's age during the year is less than 22
• 3 weeks' pay for each full year of service where the member was aged between 22 and 41
• 4.5 weeks' pay for each full year of service where the member's age during the year is 41+

The maximum a worker can receive is 104 weeks.

3. Increasing the 'maximum'

The employer can also base a week's pay on the statutory maximum or any figure between the statutory maximum and the actual week's pay.

This factsheet explains the pension rights of LGPS members facing redundancy. It aims to summarise the key issues for negotiators. Please note that all references to redundancy also apply equally to retirement in the interests of efficiency of the service.

Basic entitlement
All LGPS members in England, Wales and Scotland over minimum pension age have an absolute right to draw unreduced pension benefits in the event of redundancy.

The minimum pension age in England and Wales is currently 50 but will increase to 55 with effect from the 1 April 2010, in line with changes to the law affecting all pension schemes. Any member who has joined since the 1 April 2008 will already have a minimum pension age of 55.

The minimum pension age in Scotland is also currently 50 and will increase to 55 on 1 April 2010. However, there is a significant difference in the Scottish scheme from the LGPS in England and Wales - any person who was a member of the 1998 scheme in Scotland as at 5 April 2006 has a protected minimum pension age for redundancy purposes of 50. New joiners to the LGPS in Scotland from the 1 April 2009 will have a minimum pension age of 55.

Service enhancements
Under regulation 12 of the LGPS (Benefits Membership and Contributions) Regulations 2007 (as amended), an employer in England and Wales has the discretion to increase service by up to 10 years, up to six months after leaving employment. This is a general power that can be used to award added years on redundancy or leaving for other reasons. As an alternative, under regulation 13 of the same regulations, the employer has the discretion to also award up to #5,000 a year extra pension before the member leaves.

In Scotland, regulation 12 of the LGPS (Benefits Membership and Contributions) (Scotland) Regulations 2008 sets out the same powers to award up to 10 years, but only before the date of leaving. Regulation 13 also allows the employer to award up to £5,000 a year extra pension before leaving.

The difference is that Scottish employers can still use the Discretionary Payments Regulations to award up to 10 compensatory added years on redundancy, within six months of leaving, as an alternative to awarding extra service under the LGPS.

This is possible because a Scottish employer who uses the powers in the Discretionary Payments Regulations can pay for the increase out of current revenue and may not have to pay all the money up front to the LGPS to fund the increase. In England and Wales, compensatory added years cannot be awarded under the Discretionary Payments Regulations and so additional service awarded under the LGPS has to be paid up front.

Department of Work and Pensions amendment to the Age Regulations
Many employers use the Age Regulations as an excuse not to award added years. UNISON's position is that amendments to the Age Regulations should allow employers to continue to award added years. The full text of the amendment is below:

Section 13 B of the Employment Equality (Age) (Amendment No 2) Regulations 2006

(1) A minimum age for any member of a scheme for payment of or entitlement to a particular age related benefit on the grounds of redundancy where it is enhanced in accordance with subparagraph

(2) and paid either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise).

(2) The enhancement of any age related benefit payable to or in respect of a member on the grounds of redundancy where the enhancement is calculated in one or more of the following ways:

(a) by reference to the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b) by reference to a fixed number of years of prospective pensionable service;

(c) by making an actuarial reduction which is smaller than if early retirement had been on grounds to which paragraph 12 applied; or

(d) by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

Discretionary compensation payments
We are seeing more and more employing authorities making compensation payments in the event of redundancy, instead of awarding extra years of pensionable service or extra pension.

In England and Wales, the maximum award for such compensation payments is 104 weeks' pay, including statutory redundancy pay. In Scotland, the maximum limit has also been extended to 104 weeks' pay.

These compensation payments in excess of statutory redundancy payments are purely discretionary and employing authorities are required to publish and keep under review their particular policies. Unfortunately, we are seeing numerous examples of employing authorities making compensation payments well below the permitted maximum. These can be difficult to challenge given the discretionary nature of these requirements.

Employer's policy statements
Employing authorities in England, Wales and Scotland are required by law to prepare a written statement of their policy in relation to both the exercise of their functions to increase total pensionable service and to increase the amount of pension payable. Furthermore, these statements must be published and kept under review.

Redundancy and pension rights in other pension schemes
Pension rights on redundancy in trust-based occupational pension schemes depend on scheme rules. Like the LGPS, early payment of unreduced pension benefits for members over the minimum pension age is not uncommon, but service enhancements are likely to be very rare. Checking the scheme rules will therefore be vital to ascertaining pension entitlement in the event of redundancy in trust-based pension schemes.

In contract-based pension schemes, which are commonly stakeholder pension schemes or personal pension schemes, it's very unlikely that the pension contract terms themselves will provide any redundancy protection, although it's possible that the actual employment contract could offer some protection. There is nothing to stop an individual from drawing their pension benefits early in the event of redundancy. However, in such an arrangement, they will need to be at least 50 years of age to be able to do so, with the age increasing to 55 with effect from the 6 April 2010.

Don't overlook the community and voluntary sector when you're developing your campaign strategy - transfers, cost cutting and actual redundancies could be taking place. This factsheet explains what to look out for, and what you can do to protect members.

Transfers
Local authorities may try to cut costs by transferring work previously done in-house. In these circumstances the local authority will usually say that instead of direct provision it will make a grant to a voluntary organisation or enter into a contract to provide services.

You need to ensure:

• the Best Value Code of Practice (for England and Wales) or the Section 52 code (For Scotland) is applied
• the voluntary sector organisation has 'admitted body status' to the Local Government Pension Scheme and that members are able to remain in the LGPS
• there is a binding commitment on the local authority to meet extra pension costs stemming from future actuarial reviews of the LGPS
• that funding or any grant or contractual arrangements fully fund the service, take inflation into account and include proper provision for pension contributions and future pay awards (often voluntary sector organisations will submit budgets that fail to properly take account of inflation or include proper provision for pension contributions).

Cost-cutting
Local authorities may try to save money by reducing what they spend with the voluntary and community sector - either by ceasing to renew contracts or entering into new and cheaper contracts.

What can you do?

• consult UNISON representatives from the voluntary and community sector and involve them in developing branch strategy
• seek budget provision to achieve parity with NJC pay and conditions
• ensure local authorities review their policies and take a 'fully funded' approach to the voluntary and community sector
• funding strategies recognise that voluntary and community sector organisations are increasingly reliant on short-term funding arrangements - to sustain the voluntary and community sector, the local authority needs a strategy for sustainability
• where redundancies are proposed, ensure all staff are treated the same, whether or not they are directly employed.

Redundancies

Some community and voluntary sector employers are themselves proposing to make people redundant. In these circumstances, branches will want to:

• lobby funders (usually the local authority or primary care trust) to fund services better so as to avoid job losses
• find out what cash reserves the voluntary sector organisation has - can some of this be used to avoid redundancies without threatening the stability of organisation?
• talk to members - they often have a much better idea than management about the best way to restructure. Maybe they can make counter-proposals?
• recruit and organise.

The general redundancy advice in this toolkit applies equally to schools as to any other employer. This factsheet looks at some of the issues for branches dealing with potential redundancies in schools in England. School staff in Scotland are covered by the Scottish Joint Council, and in Wales are part of the NJC. They are covered by local authority redundancy agreements. In Scotland the schools are administered by local councils and there is separate legislation on school closures and financial support for special needs.

Staff: pupil ratios
Some schools may think it's easier to make support staff redundant than teachers. UNISON believes redundancy criteria must not discriminate against different groups of staff. Any criteria need to be fair and transparent. Branches should oppose criteria that unfairly impact on support staff.

Schools may claim they have a legitimate business case to make support staff redundant because they need to maintain teacher : pupil ratios and maximum class sizes. Use the Section 52 statements (in England) and other budgetary information to see if this is genuinely the case and challenge if necessary. In nursery settings, staff : pupil ratios also refer to qualified early years staff.

Employment linked to a specific child
Some staff, such as special educational needs assistants, may have employment contracts linked to the care of a particular child. This can lead to redundancy when that child leaves the school. UNISON discourages this practice. However if it is occurring, branches should seek to reach agreement on redeployment across schools in the authority and/or pooling arrangements, where a pool of staff can be deployed if a child needs support.

Falling school rolls
Schools are funded on a per pupil basis, so where the number of pupils in the school is falling, this will obviously impact on the school's budget.

Staff are entitled to TUPE protection if a school merges with another due to falling rolls. They are not necessarily entitled to undertake the same role in the new school.

Calculating redundancy pay for term-time workers

When determining what is meant by a week's pay in calculating redundancy pay for term-time workers, employers must use the actual amount earned for a week's work as the basis for redundancy pay, not a worker's annual salary divided by 52. An employment appeal tribunal ruled that the higher amount should be used as the basis for calculating redundancy pay (Gilbert and others v Barnsley MBC, EAT/674/00).

Get parents involved
Local schools are at the heart of every community - there is normally keen public support for keeping them open. Try to involve parents and children in your campaign.

School closures, change of status and TUPE If a school is closed by the local authority or the secretary of state or government department and then reopens as a new school, existing staff should be re-employed. Both TUPE and rights acquired through continuity of employment should apply.

The right to maintain pay and conditions where schools close or change status is set out in The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007. You can download the regulations at:
opsi.gov.uk/ si/si2007/uksi_20071289_en_1

The guidance and legal position is not always straightforward - branches must seek advice from UNISON education. Email:
education@unison.co.uk

Staff employed by more than one school
Where staff are employed in more than one school, the board of one of the schools can be delegated to act as the employer. Ending the employment at one school should not normally affect employment at the other school.

Right to appeal
School staff have a right to appeal to the board of governors against a decision to make them redundant. The appeal should be heard by a panel of governors, none of whom should have been involved in the original redundancy decision.

School staffing legislation (England)
While many of the general issues are similar across the UK, England has separate legislation relating to appointing and dismissing school staff.

Appointing and dismissing staff
Community school staff are local authority employees. However they are generally appointed by the school's head teacher or governing body through delegated powers. This can have implications for redundancy and the advice and support we give members.

In community schools, the head teacher or governing body has the power to decide if staff are to be made redundant and to determine the criteria for who will be made redundant. However, as staff are employees of the local authority, there should be opportunities for redeployment within the authority, and schools are obliged to consult with the local authority before dismissing staff.

UNISON strongly recommends branches have a model agreement relating to redundancies and redeployment in schools. This ensures fair and transparent criteria can be applied and there is cooperation between schools and the local authority.

The regulations governing the appointment of school staff are in the School Staffing (England) Regulations 2003. See them at:
http://www.opsi.gov.uk/si/si2003/20031963.htm

Self-governing schools
In self-governing schools, such as trust, foundation or voluntary aided schools, the school usually acts as the employer (unless a member of staff is employed directly by the authority to work in the school). This means staff made redundant will not necessarily have the opportunity for redeployment in another school. However in many authorities schools have entered into voluntary protocols that allow staff to be redeployed within the authority.

Branches should seek to ensure that any redundancy agreement includes all self-governing schools.

School meals staff
The School Staffing Regulations state the local authority is responsible for the appointment and dismissal of school meals staff - and is therefore responsible for determining redundancy criteria. The local authority must consult with the school where the staff member works before any decisions are made.

School funding and budgets: Section 52 statements
Under Section 52 of the School Standards and Framework Act, local authorities are required to publish a summary of all actual and budgeted expenditure on education.

This can be useful when fighting redundancies and closures - it includes financial information such as the level of reserves on a school-by-school basis. Information will normally be published on the authority website and is also available on request.

If a school claims redundancies are the result of school remodelling or other initiatives arising from the national social partnership in schools (WAMG agreement in England and Wales), this should be raised with the local social partnership (local WAMG) or reported to UNISON head office.

Redundancy is one of the most traumatic things that can happen to a worker - and dealing with widespread compulsory redundancies is the worst case scenario for any branch. But there are numerous preventive measures you can negotiate around to avoid or limit that situation.

It's important for UNISON to talk to members - individually and in groups - and give them as much support and information as possible. You should also talk to your members about their ideas for alternatives to redundancy.

The options will vary considerably depending on the size of the authority and the services being provided. Timing is also a factor, so you should start talking about the options as early as possible in the process.

Alternatives include:

• natural wastage - not replacing staff who leave
• freezing recruitment
• eliminating vacant posts
• voluntary redundancy - high compensation will increase takeup and lessen the need for compulsory redundancies
• 'letting go' agency staff
• stopping or reducing overtime
• offering early retirement to volunteers (subject to age discrimination issues)
• retraining
• work sharing - reducing hours (though this could be unfair on part-timers)
• redeploying staff to other areas
• offering existing employees sabbaticals and secondments
• using local supply chains to maximise savings without staff cuts.

Seeking volunteers
Offering a voluntary redundancy package and then asking for willing volunteers may avoid compulsory redundancies altogether.

Redeployment
Employers must consider suitable alternative work and are expected to look for it throughout the organisation. The law removes entitlement to a statutory redundancy payment if an employee unreasonably refuses a suitable alternative.

Training
Union learning representatives should be to the fore in helping people access education and training opportunities. The council should also provide opportunities for workers to retrain and move within existing roles, and offer advice and guidance in the event of redundancy.

With plans to increase the number of apprentice places, consider apprenticeships as a way of retraining staff. Schemes can be for over-24s as well as younger workers.

Savings suggestions
This toolkit includes a form for you to give to members so they can suggest ways to cut costs without cutting jobs. This could throw up some good ideas and will help you involve members in your campaign.

The cost of redundancy to employers
The precise cost of making a worker redundant depends on the specific circumstances of individual organisations. But the Chartered Institute of Personnel Development estimates the direct cost to an employer ranges from £10,575 for each worker (when they are not replaced afterwards) to £15,242 (if they are replaced by new workers). The cost rises to £16,375 if replacement workers need to be inducted and given initial training.

There are indirect costs too, such as higher staff turnover and lost output - the result of redundancy's impact on the morale of workers who keep their jobs.

Give this form to your members - they can use it to suggest ways of saving money without shedding jobs (Reps/stewards, don't forget to fill in the return address and date to be returned by on the form)

Savings suggestions form

You need to be fully informed to protect members. However there may be information relevant to the redundancy process that the council is unwilling to give. This factsheet explains your rights under the Freedom of Information Act. This can include financial information or getting to the bottom of how genuine the consultation process actually is.

The Freedom of Information Acts
The Freedom of Information Act 2000 applies to all information held by public authorities. (slightly improved conditions apply to Scotland under the Freedom of Information (Scotland) Act 2002). It allows access to recorded information. This means you can have access to information held by public authorities or information that is held on their behalf.

Before making your information request
Many local authorities already make a lot of information available, so ask for it or check to see if it's available. If you can already get hold of it, the council isn't obliged to deal with your request.

Who can request information under FOI?
Anyone can request information under the act regardless of age, nationality or location.

How do I make a request?
Include:

• your name
• a description of the information you want
• any preferences for the format for receiving the information.

(you do not need to say why you want the information)

What happens when I make a request?
When a council receives a request for information it has to respond promptly within 20 working days. The council will consider your request and let you know if it can provide the information requested, or explain why it can't. If the council does not respond within 20 working days, write them a reminder letter. If the council still does not respond, you can refer the request to the information commissioner who will take appropriate action (see below).

What does it cost?
If the requested information costs more than £450 (£600 in Scotland), the council is allowed to charge for it. If the cost of meeting the request exceeds the appropriate limit in the regulations, they are not obliged to meet the request. Many councils also reserve the right to charge for disbursements, such as photocopying and postage.

What happens if my request is refused?
A request for information may only be refused if:

• it is vexatious or repeated
• if the council has asked for more information in order to meet the request and it has not been provided
• if it falls under one of the exemptions (for instance, confidential information on named individuals).

If your request is refused, the council should explain why and give you details of how to apply for an internal review of the decision. If, after an internal review, the council still refuses your request, you can ask the information commissioner to review the decision.

See also the comprehensive UNISON guidance: Negotiating and Campaigning with the Freedom of Information Acts (Scotland and UK), located at http://www.unison.org.uk/acrobat/B1959.pdf [PDF]

Reports on local UNISON agreements held in the Bargaining Information System database are available from your regional officer or from the bargaining support group at:

1 Mabledon Place, London WC1H 9AJ.
Tel: 020 7551 1155, fax: 020 7551 1766
email: bsg@unison.co.uk

To continue to help us build the library of agreements, please send any agreements you make to your regional officer to add to the Bargaining Information System.

• ACAS Redundancy Handling acas.org.uk/index.aspx?articleid=747
• BERR: Redundancy Consultation and Notification: Guidance berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/page13852.html
• CIPD (2009) Redundancy cipd.co.uk/subjects/emplaw/redundancy/redundancy.htm
• I&DeA provide useful tips on how your council can make savings through better procurement when using temporary agency staff and consultants. It's the fourth biggest external spend area in local government, after construction, adult social care, and waste management.
  Top tips for making savings through better procurement in professional services www.Idea.gov.uk
• I&DeA (2009) Tackling Worklessness - a series of 'how to guides' for councils and their partners: Responding to redundancy Idea.gov.uk/idk/aio/9464793.pdf
• LRD (2009) Redundancy Law: A guide for union reps Available to order through the Labour Research Department. Tel: 020 7792 80621 email: info@lrd.org.uk
• TUC (2008) Coping with the Economic Downturn: A practical guide for working people and their families tuc.org.uk/extras/downturn.pdf
• UNISON (2006) Collective Redundancies Factsheet unison.org.uk/acrobat/B2781.pdf
• UNISON Scotland Local Government Cuts Campaign toolkit www.unison-scotland.org.uk/localgovt/LGcampaignpack.pdf
• UNISON Scotland P&I Briefing 210 - Law on redundancy in Scotland www.unison-scotland.org.uk/briefings/210TheLawonRedundancy.pdf