To consult or not to consult?
But school governing bodies needing to make staff cuts would be well advised to continue to consult employees and their recognised trade unions, according to a leading authority on teacher employment, Maureen Cooper. She warns that failure to consult unions could result in a redundant employee bringing a claim for unfair dismissal or unfair selection for redundancy to an industrial tribunal in order to test the fairness of decisions on which previously there would have been consultation.
Maureen Cooper, a director of EPM, formerly the educational personnel unit of Cambridgeshire County Council, describes consultation as good employment practice. "It's much better to be aware of the perspective of the trade unions as soon as it is clear there is a need to make a reduction in staff, rather than to discover that they have a serious objection at the point where you are dismissing staff. If you don't talk to people and there is a problem, then clearly it becomes a bigger problem."
The little publicised change in the law on consultation was introduced by regulations laid before Parliament last October. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995, to give them their full name, amend section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. This piece of legislation originally gave employees the right to be consulted over redundancy proposals - but only if they were represented by trade unions recognised by their employers.
The recent amendment extends the right to employees who do not belong to a recognised trade union. In other words, while the main effect of the change on schools is to take away the right to consultation whenever fewer than 20 jobs are being axed, its impact on employment generally is to give this right to many employees who did not have it in the past.
The amended section of the 1992 Act now says: "Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any employees who may be dismissed."
"Appropriate representatives" are either those elected by employees to represent them or representatives of a recognised trade union. To comply with the law, employers making 20 or more staff redundant should consult these representatives about ways of avoiding dismissals, reducing the num-bers of employees to be dismissed and mitigating the con-sequences of the dismissals.
But EPM urge school governing bodies proposing to make fewer than 20 redundancies to consult with the recognised trade unions in the same way as they would if the legal obligation to do so had not been removed. This means informing staff and their representatives of the reasons for the proposals, the number and description of employees who are to lose their jobs, the total number of employees of this description employed by the school, and the proposed methods of selecting staff for dismissal and of carrying out the dismissals. It also means allowing enough time for meaningful consultations to take place.
Where governors need to cut teaching jobs by August 31 in any year, EPM advises them to do the following before May 31: * send out a consultation letter; * consult with staff and trade unions, and look for a voluntary solution; * if necessary, make a compulsory selection, giving individuals who may be selected reasonable notice of the selection meeting; * hold a dismissal hearing, again giving reasonable notice to the individuals concerned; * give individuals a reasonable period of time to lodge appeals against the decision to dismiss them.