Published: 25th January, 2021
On Monday 18th January 2021, University of Leicester’s Executive Board notified 145 employees from across the institution that they may be at risk of redundancy.
Collective consultations are taking place across this week (w/b 25th January 2021). In most cases it is likely that these will be followed by a further collective consultation and two individual consultations (this will only not happen if the threat of redundancy is withdrawn or if individuals at risk decide to take voluntary redundancy or leave for some other reason).
Unions will be present at all collective consultations and members are advised to ask for union representation in their individual consultations too. Whilst union reps will be able to help those at risk to navigate the technicalities, the more we can generalise a basic understanding of the relevant policy, procedure, legislation, and employment rights, the better. Here I link to some of the most important documentation and draw out a few things to watch out for.
Redundancy can only happen for one of four reasons:
We anticipate that the reason given in each of the current batch of redundancies will be reason 3.
It is important to note here that ‘need’ is a legitimate management consideration. If management make a case that they ‘need’ to stop supporting work of a certain type in order to achieve a certain aim, the fact that you can see that this is misguided and that the redundancy will not help to achieve that aim does not in itself make the redundancy unlawful. But, beyond that, the employer needs to show how they have selected people and to demonstrate the legitimacy, objectivity, and consistency of that selection including its relationship to the perceived diminishing (or ceasing) need, leaving an imaginary future tribunal satisfied that they have followed the law.
‘Work of a certain type’ is not defined in law but legal precedent suggests that it should be interpreted broadly rather than narrowly. So, for example, the type of work that a Teaching Fellow in an English Department does is English teaching and scholarship, rather than teaching and scholarship pertaining to the specific modules they have been allocated.
The employer has to show that the redundancy pool selection (this means everyone who has been told that they might be made redundant) has been fair, objective, and consistent. In the Business Cases that will be presented at the collective consultations, they will have to explain what is shared about the work of those who have been selected that is not shared with those who have not been selected. For example, the group could consist of a whole formal division or department or it could be all research staff within a particular department. When looking at managers’ claims around selection criteria and method, consider some of the following questions:
The most useful documents here are once again those linked above.
Collective redundancy business cases have to involve an Equality Impact Assessment. In our experience these are rarely more than surface deep consisting mostly of the presentation of statistics relating to protected characteristics. As such we need to be vigilant.
Obviously, if a collective case involves all the non-white staff in a particular department or all those over a certain age this will be a clear red flag and may indicate direct discrimination.
However – more subtly – it may involve all part-time staff in a department. Because of the relationship of part-time work to certain protected characteristics (for example by way of its relationship to those with care responsibilities, who are disproportionately women) this may also indicate discrimination.
Union membership is not a ‘protected characteristic’ but we are protected by law from receiving unfavourable treatment on the basis of our union membership and engagement in lawful union activity. If a Business Case appears to have disproportionately targeted union officers, reps, or activists, this could indicate victimization, which it one of the four sub-categories of discrimination under law.
Whilst in most cases of management malfeasance only the institution is liable, in discrimination cases both the institution and the individual perpetrator are liable.
You can chase down internal EDI policy and documentation by navigating a web-warren that starts here
Relevant equalities legislation is here (Equalities Act 2010)
And legislation protecting against union victimization is here (Trade Union and Labour Relations (Consolidation) Act 1992)
In cases of discrimination or victimization, you may also wish to start a formal grievance.
If the stated reason that you have been selected for redundancy is related to research and/or scholarship, or to the content of your teaching, this could be a breach of Academic Freedom policy and legislation.
University of Leicester’s Academic Freedom Ordinance Policy states that its purpose is, in part, to
ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges
and to protect the rights of academic staff
to carry out research work without any undue interference, or any suppression, in accordance with their professional responsibility and subject to nationally and internationally recognized professional principles of intellectual rigour, scientific inquiry and research ethics. They should also have the right to publish and communicate.
This policy is more or less standard across HE institutions and paraphrases the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, conveniently leaving out the bit about freedom to be critical of one’s workplace. The UNESCO Recommendations are unfortunately just that – recommendations – and do not have status as law but the Education Reform Act 1988 contains similar provisions around research and teaching.
The right to academic freedom unfortunately doesn’t extend to employees who are not engaged in teaching or research.
In practice, the precise way in which research is organised in your department will impact on whether, and how easily, your redundancy can be demonstrated to be an attack on academic freedom. A key question to consider here is whether your area of research if formally organised (into a division or department for example) and whether the whole of this formal groupuscule is earmarked for redundancy. If this is not the case, if research areas are more fluid and informal, it may be much easier to demonstrate that your academic freedom has been infringed upon. Even in the more formal version, however, there are difficulties for managers in making a selection criteria based on research stick. Because research does not, in most cases, come under direct management control, there are no grounds for managers to assume a continuity of sub-field between past and future research and there are no grounds for managers to assume adherence to non-offending sub-fields by those they have not put at risk.
It is worth stressing that one does not have to be made redundant in a mass redundancy scenario in order to successfully claim the ones academic freedom has been infringed. Knowing that colleagues have been dismissed for conducting research of a certain type limits my ability to do research of that type too as there is an implied threat to my job. We would encourage all members – both those at risk and those not at risk – to be attentive to this.
These are certainly not the only issues that may come up in consultations. We would encourage members attending consultations to make use of the opportunity to talk these issues through with union officers who are present. All Business Cases will also be submitted to UCU’s regional office who will give further advice.