tmc contractsbriefing jun10 by sgs479i

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									                                                                                 February 2010


New contracts briefing
Introduction

Members are at different stages of the process for redundancy and redeployment.
According to reports we have received, reps and members describe a variety of timetables,
scenarios and advice from regional and local managers. The College has confirmed that
they do not have any deadlines because establishments are at different stages of progress.

This briefing sets out advice to cover the circumstances reported to the union as well as
more generic advice.

Please make sure you read this carefully and follow the guidance outlined
below.

If your query is not covered in the following advice, then please contact your
representative in the first instance or regional office if you do not have a local rep.


1.   Keeping Written Records

UCU cannot stress how important it will be for members to get offers of new
contracts/redeployment/roles/salary/general Ts & Cs in writing from the employer.

Make sure that all of your dealings with management are put in writing and that they do
the same.


2.   Procedures

2.1 Appeals

Scoring is a means to select an individual for redundancy but the process must be fair,
transparent and objective. A flawed process could lead to an unfair dismissal. TMC does
not seem to think that this is the case. Getting this part of the process right is essential. If
it isn’t then an appeal against scoring could become an appeal against dismissal. That is
why keeping a written record of the process is so important.

2.2 Appeals against Scoring

TMC said that they would score individuals to select them for redundancy if they were in a
pool of more than one. Scoring is therefore used where there is more than one employee
in a pool. TMC’s selection criteria was covered in Appendix 5 of the final documents issued
by TMC in May 2010. Initially TMC also stated that the process of appealing any selection
based upon scores would be done at an individual meeting, and the appeal heard by a
manager not previously involved in the scoring. However, we have since been informed by
some representatives that this process has now changed to involve the submission of an
appeal form with no formal hearing.

UCU has written to TMC challenging this apparent change to the procedure.

2.2.1 What members need to do:

Members need to be aware that because the scoring could lead to a dismissal (for reason
of redundancy) unless the appeal against the scoring is conducted fairly there could be a
potential claim for unfair dismissal.

Employees should be given their scores from the selection process and be allowed the
opportunity to make representations about them. An employee does NOT have the right to
see other employee’s scores.

2.2.2 Questions to ask about scoring:

   a. Ask who did the scoring and what information was provided
   b. Flag up if you have any queries about your relationship with your manager or those
       who did the scoring: could the decision not have been based on objective criteria
       and facts
   c. Ask to see a copy of the information/evidence documents used to arrive at the
       scores.
   d. If necessary, submit a Subject Access Request (See Appendix One) to obtain all of
       your records
   e. Ask what equality impact assessment they have carried out and ask for a copy.

Be prepared to challenge any incorrect information. Also raise any issues if you believe
that the way in which scores have been applied have been discriminatory in anyway. E.g.
absenteeism may have a greater impact on employees with certain types of disability.

2.3 Appeals against Selection

You can also challenge via an appeal if you believe that you have been unfairly selected
(e.g. placed in a pool of one). The pool does not have to include only those doing the
particular type of work that has been reduced, if roles are interchangeable – in fact,
restricting the pool in this way may make the dismissals unfair. You should ask in writing
for a written response, if you believe that other roles should have been considered
alongside your own, the reason for this decision, (give examples). You should also ask who
made the decision. (This will be important for anyone who believes that their manager
may have discriminated against them by favouring another individual over themselves).



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2.4 Appeals Against Redundancy

If you have been made compulsory redundant i.e. there is no job, no offer of alternative
work and you believe that this is unfair (because of the selection) you need to let us know
immediately and further advice will be issued to you at this point. Remember there is a
limited period within which to make an appeal


3.     Offers of Redeployment

In a redundancy situation, employers (and employees) have a responsibility to seek to
mitigate the job losses and redeployment is one such way to do that. An employer should
consider offering suitable alternative work to a potentially redundant employee, if it is
available. Although in general an employer is not legally obliged to find other work, a
failure to offer suitable alternative employment if it is available is likely to make the
redundancy dismissal unfair.

TMC has come up with a combination of ‘alternatives’ which range from a change of role
(e.g. Lecturer to Trainer), a change of hours (e.g. Full-time to fractional), a hybrid
combination of contracts (e.g. Fractional and Sessional).

3.1 Reduction in Working Hours

     a. The statutory definition of redundancy includes reference to a ‘diminished’ need for
        employees which would imply that there is not necessarily a need for the reduction
        of a whole employee in order for a redundancy situation to exist.
     b. For example, it would seem reasonable to suggest that if an employee who works
        37 hours has their working week cut to two hours, and refuses the change, the
        resulting dismissal could be on the grounds of redundancy. It could be further
        argued that potentially any reduction in hours is a ‘diminished’ need capable of
        amounting to redundancy and, if this is the case, the pertinent question will be
        whether the offer of the new or sessional contract amounts to suitable
        alternative work.
     c. If the reduction in hours is slight and/or pay protection arrangements are available,
        the new working arrangement might be deemed suitable alternative work and
        unreasonable refusal may lead to loss of entitlement to redundancy pay.
        Furthermore, if an employee accepts the new reduced hours arrangement,
        either explicitly or by working under it, then subject to the statutory four
        week trial period, the new arrangement will be considered suitable and there will
        have been no redundancy dismissal – this will be the case even if there has been a
        significant reduction in hours without pay protection. See Section 4 below




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4.        The implications of signing a ‘New Contract’

It is vitally important that members are fully aware of the implications for signing a
contract for any new offer of work. This applies to all staff, including those who are at risk
and also those who have been declared ‘safe’

It seems the college is going to try and get as many staff as possible to "sign and accept",
starting with managers. They hope this will undermine UCU resistance. Our advice is that
staff whether managers or not should not accept the contract or sign anything but
instead write to the college. (See Section 4.1)

4.1 What members should write and ask the college to confirm:

Model Letter:

Name:

HMP/YOI:

     a. I cannot accept or sign any new contract until answers to the following questions
          have been made
     b. Have you terminated my previous contract?
     c. If so, I would be grateful if you could confirm this in writing and explain under what
          basis my contract has been terminated (i.e. redundancy or other reason – please
          specify)
     d. If in answer to question c above, is redundancy, with reference to Section 139 of
          the Employment Rights Act 1996 (ERA96) why is my current contract being made
          redundant?
     e. e) What exactly are the pay protection/compensation payment arrangements for
          this [new] contracts given that if I accepted this could result in me facing financial
          detriment, now and in the future?
     f. f) What are the tax implications for taking a VS payment and remaining as an
          employee?
     g. What is the salary of this post?
     h. What are the contractual Terms and Conditions of this post? [holiday, sickness,
          fixed-term, zero hours etc, development/preparation time etc]
     i.   Will there be a statutory four week trial period?
     j. Will my continuity of service be protected if I signed a new contract for a new post
          and implications for any future redundancy situations?
     k. How will the working arrangements by which these hours will be delivered
          (days/times etc) be different from how I work now?
     l.   What will be the impact on my pension? (If you are in TPS this is a final salary
          pension scheme – we may need to seek separate advice on this in terms of the
          impact on accepting reduced hours and ultimately reduced pay?)


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“I would be grateful if you could provide answers to the above questions within 5 working
days in order that I can make an informed decision as to my future employment alongside
a VS calculation”

Staff can also expect to receive contracts at home to sign and the advice is the
same.

These contracts do not come into force before 1 August and there is no need to
sign anything immediately.


5. Sessional Tutors

All of the above advice applies for those staff employed as sessional tutors. However, if
priority is being given to Full/Fractional staff or ‘at risk’ there could be claims for
discrimination under the Fixed-term or Part-Time Working regulations and Discrimination
Legislation.

The issue remains that TMC has still to disclose what a ‘new’ sessional contract would look
like including the basic rate of pay.

If members who are employed as sessional tutors are prevented from applying for
vacancies because the vacancies have been ring-fenced to ‘at risk’ full-time or fractional
staff. Then you are advised to send a model letter (See Appendix Two)


6.    Redundancy in Special Circumstances

6.1 Maternity (See Appendix 3)

Preference should be given to the woman who is on maternity leave above anyone else for
any redeployment opportunities. Regulation 10 of the Maternity and Parental Leave etc
Regulations 1999 states that if a woman is to be made redundant during her Ordinary
Maternity Leave or Additional Maternity Leave she must be offered any suitable alternative
jobs that may be available. This means that you have the right to be offered any suitable
alternative vacancies before others who are not on maternity leave and you do not need to
go for interviews

7.   Next Steps

UCU is in dispute with TMC over all these matters and will be balloting members shortly.
We need you to stand firm and not give in to this unacceptable pressure and treatment of
you by your employer. Please make sure your colleagues are aware of this advice and
recruit more staff to UCU in order that we can have as strong a collective voice as possible.




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Appendix One


How to Make a Subject Access Request

Please find attached a draft Subject Access Request letter which you will need to send to
The Manchester College. The cost of one of these types of checks is £10, this is a statutory
fee therefore you must enclose with this letter a payment (either cheque or postal order)
for £10.00.

You also need to add in to that letter where marked:

a)   Date the letter

b)   Complete your Date of Birth

c)   Complete your employee number

d)   Sign the letter

By law subject access checks have to be completed in a maximum of 40 days, please
therefore ensure you send the letter via recorded delivery and keep copies of any
responses.




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MODEL SAR LETTER




                                                                                           Date:

Data Protection Controller
The Manchester College
Offender Learning Directorate
One Central Park
Northampton Road
Manchester
M40 5WR



Dear Sir or Madam

Name:
Employee No:
DOB
HMP/YOI:

Please send me the information which I am entitled to under the Data Protection Act 1998
in relation to my employment with TMC. This would include any information held centrally,
held at the Doncaster office, or the prison itself. In particular I request sight of the
following:

[Following is optional – can add or remove specifics relating to particular circumstances]

a)      Redundancy Matrix and Selection Criteria which was applied to me

b)       Minutes to my redeployment interview, scoring criteria and outcome




I also request any information about me contained in any correspondence electronic or
paper based. I enclose £10.00 as a fee.

Kindly acknowledge safe receipt and a response within 40 days allowed under the act.


Yours faithfully

[Insert Name]




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APPENDIX TWO - Advice for Sessional Tutors
If a fixed-term employee believes he/she has identified a difference in treatment compared
to a permanent employee, he or she has the right to request a written statement from
their employer giving reasons for the difference in treatment. An employer must provide
the statement within 21 days of the request. [Regulation 5]

In the event of a case progressing to an employment tribunal, this statement may be used
in evidence. The failure or refusal to provide a statement without a reasonable excuse, or
an evasive or equivocal statement, can be used by the tribunal when determining whether
there has been an infringement of the employee's rights.

Please find below a model letter which we suggest you send to see if the employer can
objectively justify the difference in treatment. We also suggest you send a copy of the
letter to your direct line manager.

To [The Director of Personnel/ Human Resources for your employer

Including full address]

From [Your full name, job title and workplace address]

Date [.........]

Fixed-term Employees [Prevention of Less Favourable Treatment] Regulations 2002

I believe I am being treated less favourably than a comparable permanent employee and
that this infringes my right under Regulation 3 of the above Regulations not to be treated
less favourably than a comparable permanent employee. I believe the difference in
treatment to be:

[detail difference in treatment - this may relate to one or more issues]

I am formally writing to request from my employer [....................] a written statement
giving particulars of the reasons for the less favourable treatment as detailed above.

I would be grateful of you would provide the statement to me within the statutory 21 days
defined in Regulation 5.

Yours sincerely

[...........] (Cc the UCU officer dealing with your case)




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APPENDIX TWO
Download
www.maternityaction.org.uk/sitebuildercontent/sitebuilderfiles/redundancy.pdf




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