Teresa Thomas is head of employment law and HR at Wilkin Chapman solicitors. A Partner at the firm, her team advises clients on all aspects of HR and, in this special report, she looks at how companies can restructure effectively while staying within the law.
In the renewables sector, as in any profession, firms working within the supply chain are reliant on loyal and committed workforces.
Adaptability and flexibility will be two key attributes required in order that work is both won and maintained to a high standard. However, as contracts are secured, completed or perhaps lost there are often decisions to be made that may require increasing, reducing or restructuring a workforce.
For SMEs working in a renewables supply chain, acting swiftly but correctly will be the key to making changes to personnel while remaining within the laws that quite rightly exist to protect our country’s working population?
So, what is a possible solution if a firm is faced with the task of restructuring? Or perhaps there is another reason why an employee must be told to leave a business?
The answer may lay in a SOSR (some other substantial reason) dismissal – a ‘catch all’ reason for dismissal if a situation does not fall within one of the other four potentially fair reasons to dismiss – those being capability, conduct, redundancy and breach of a statutory obligation.
But be warned, any responsible boss must establish sound justifications for their actions. If they do not, they are likely to come unstuck at an Employment Tribunal.
To best explain, let us look at some possible circumstances that may give rise to a SOSR dismissal and how the process should begin:
Your wish to re-organise the business. This is not to make redundancies, but to change the allocation of tasks, certain hours and roles in line with productivity. How do you deal with those employees who do not agree to the changes? Yes, you can dismiss on the grounds of SOSR without having to reach a financial settlement, but ONLY if correct procedure is followed and documented. Relevant factors include have you consulted correctly and given reasonable warning? Is the change justified for business reasons and have alternatives been considered? Have you explored a voluntary agreement with the employee? How many others have accepted the change? Has any Trade Union that is recognised recommended the change? You must start this process fully equipped and determined to see it through.
You have won a contract with staff working onsite for your client. The client, for no obvious reason, does not want an individual back on the job and has made it clear the contract will end if they do return. An example within the offshore wind sector may involve a wind farm operator telling the crew transfer vessel provider that the technicians are refusing to travel with a particular crew member of the crew transfer vessel. What can you do? You may well have grounds for a SOSR dismissal as a result of pressure from a third party, however you must try to ascertain, in writing or email, what has the employee done to offend the customer (although they do not have to divulge this information), look to see if the contract gives them the power to refuse your employees’ access to the site and you must be sure that you cannot redeploy the staff member.
There may be an individual who has always been troublesome, stirring the negative pot whenever an opportunity arises and disrupting the workforce harmony, but they never seem to have ‘stepped over the line’. A personality clash, or someone with a bad attitude will not alone justify a SOSR. Where is your evidence? Has your appraisal procedure tackled this? Is the employee clear about any complaints against them? Has the company looked at other options or training? Do exit interviews cite the individual as a reason for leaving? What consultation has there been? These people are often difficult to deal with and you and the appropriate managers must use proper procedure to be confident in your case for a SOSR dismissal.
For advice on any aspect of employment law, please contact the Employment and HR team at Wilkin Chapman solicitors on 01472 262626.