Seniority (Last in First Out)
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Seniority (Last in First Out)
Firstly, I am a member of BALPA and not anti-union in any way.
As has been discussed (to death) in another thread, bmibaby are currently facing reduncancies from just one of their bases. I do not intend this thread to become another bmibaby discussion.
The crux of the issue is that the comany is proposing not to use company seniroity to make those redundancies. The reason for this (the company states) is that LIFO (on it's own) is no longer legal.
As if to underline how complex this is about to become, Thomson are about to make 200 pilot redundancies ... however, the are all expected to be voluntary because the package being offered is so good. Why such a good package? Because Thomson (and TUI) do not want to be the first airline to approach pilot redendancies since the law changed.
My question is this:
If seniority is no longer the deciding factor for pilots within airlines, what will be, AND, will it spell the end of BALPA?
As has been discussed (to death) in another thread, bmibaby are currently facing reduncancies from just one of their bases. I do not intend this thread to become another bmibaby discussion.
The crux of the issue is that the comany is proposing not to use company seniroity to make those redundancies. The reason for this (the company states) is that LIFO (on it's own) is no longer legal.
As if to underline how complex this is about to become, Thomson are about to make 200 pilot redundancies ... however, the are all expected to be voluntary because the package being offered is so good. Why such a good package? Because Thomson (and TUI) do not want to be the first airline to approach pilot redendancies since the law changed.
My question is this:
If seniority is no longer the deciding factor for pilots within airlines, what will be, AND, will it spell the end of BALPA?
It seems managers THINK seniority MAY be equated to age discrimination. The possibility of litigation frightens them, so they try to find another way around the problem. As I understand the situation, seniority is not specified as age discrimination; but time serving can be seen as age related (young people don't appear at the top of the list,) however, rewarding experience is acceptable so seniority may be acceptable for good things, but, possibly, not bad. Notwithstanding all the above neither mangers nor BALPA want to go to court over badly written legislation so the precedent will not be set and both sides will be frightened of the shadows.
BALPA will survive, it doesn't have a seniority system to defend; it has many more issues to contend with that usefully occupy it's time and my money.
Incidentally LIFO is contractual in my company.
BALPA will survive, it doesn't have a seniority system to defend; it has many more issues to contend with that usefully occupy it's time and my money.
Incidentally LIFO is contractual in my company.
Some recent high court thoughts on LIFO;
17 October 2008
Unite, Britain’s biggest union, has secured a landmark ruling from the High Court in one of the first cases on age discrimination to be considered by the courts.
The company sought to argue that taking long service into account when selecting workers for redundancy amounted to indirect age discrimination.
Rolls Royce claimed that part of a long-standing redundancy selection agreement was unlawful in the light of the 2006 Regulations outlawing certain types of age or service-related discrimination. This would have had the effect of automatically discounting long service in future rounds of redundancy.
The High Court flatly rejected that argument, accepting the Union’s case that the service element in the redundancy procedure was lawful as it was a contractual benefit that was effectively a reward for loyalty to the company. The Court also accepted that older workers typically have more difficulty finding new work after being made redundant, and that seeking to protect them in redundancy agreements was legitimate even under the 2006 Age Regulations.
Unite has been concerned that the Regulations are being used by some employers to remove service-related benefits for reasons that have nothing to do with concerns about discrimination.
Unite joint general secretary, Derek Simpson said: "This landmark ruling sets a precedent for protecting older workers from the effects of redundancy. We believe that Rolls Royce were effectively trying to use age discrimination legislation to remove agreements which are designed to protect older workers.
"When an economic downturn bites older workers often find it harder to find alternative employment when they are made redundant. This landmark ruling will give many older workers some extra protection during these difficult times.
"Unite have found that many companies have tried to use the Age Discrimination Regulations as an excuse to level down rights, especially in relation to redundancy. We look forward to using this decision to help defend our members rights in many other companies as well as Rolls Royce."
The Employment Equality (Age) Regulations 2006 outlaw direct and indirect discrimination on grounds of age. Service-related provisions in employment contracts can be indirectly discriminatory because longer serving workers usually tend to be older.
If a provision is a service-related benefit, it is possible to justify the less favourable treatment of shorter-serving workers if the provision is a means of achieving a “business aim”. Rolls Royce argued that its only business aim in applying the redundancy terms was to retain the best people for the future, but the Court accepted the Union’s argument that when it made the redundancy agreement the company agreed with the Union that there were other aims involved, including having a fair and transparent system which achieved a reduction in headcount “peaceably”.
17 October 2008
Unite, Britain’s biggest union, has secured a landmark ruling from the High Court in one of the first cases on age discrimination to be considered by the courts.
The company sought to argue that taking long service into account when selecting workers for redundancy amounted to indirect age discrimination.
Rolls Royce claimed that part of a long-standing redundancy selection agreement was unlawful in the light of the 2006 Regulations outlawing certain types of age or service-related discrimination. This would have had the effect of automatically discounting long service in future rounds of redundancy.
The High Court flatly rejected that argument, accepting the Union’s case that the service element in the redundancy procedure was lawful as it was a contractual benefit that was effectively a reward for loyalty to the company. The Court also accepted that older workers typically have more difficulty finding new work after being made redundant, and that seeking to protect them in redundancy agreements was legitimate even under the 2006 Age Regulations.
Unite has been concerned that the Regulations are being used by some employers to remove service-related benefits for reasons that have nothing to do with concerns about discrimination.
Unite joint general secretary, Derek Simpson said: "This landmark ruling sets a precedent for protecting older workers from the effects of redundancy. We believe that Rolls Royce were effectively trying to use age discrimination legislation to remove agreements which are designed to protect older workers.
"When an economic downturn bites older workers often find it harder to find alternative employment when they are made redundant. This landmark ruling will give many older workers some extra protection during these difficult times.
"Unite have found that many companies have tried to use the Age Discrimination Regulations as an excuse to level down rights, especially in relation to redundancy. We look forward to using this decision to help defend our members rights in many other companies as well as Rolls Royce."
The Employment Equality (Age) Regulations 2006 outlaw direct and indirect discrimination on grounds of age. Service-related provisions in employment contracts can be indirectly discriminatory because longer serving workers usually tend to be older.
If a provision is a service-related benefit, it is possible to justify the less favourable treatment of shorter-serving workers if the provision is a means of achieving a “business aim”. Rolls Royce argued that its only business aim in applying the redundancy terms was to retain the best people for the future, but the Court accepted the Union’s argument that when it made the redundancy agreement the company agreed with the Union that there were other aims involved, including having a fair and transparent system which achieved a reduction in headcount “peaceably”.
Its often crossed my mind this question of seniorty.
If length of service is a deciding factor.....what if the person involved is a complete d1ckhead / poor at his (or her) job etc. Should said person automatically be considered above others purely for their length of service. When perhaps others who give that little bit extra but with less years service stand out above the 'oldtimers'
No idea about the legalities surounding this but has ocasionally been one for my 'idle curiosity' box.
If length of service is a deciding factor.....what if the person involved is a complete d1ckhead / poor at his (or her) job etc. Should said person automatically be considered above others purely for their length of service. When perhaps others who give that little bit extra but with less years service stand out above the 'oldtimers'
No idea about the legalities surounding this but has ocasionally been one for my 'idle curiosity' box.
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LIFO and other contractual commitments?
Possibly not related to specific examples but when a newish recruited person is still under contractual obligation for a type rating or other training - it would really be "nice" to become redundant as then the obligation will automatically become nil and void due to the employer not being able to employ them any longer? So there might be some method in the madness of not blindly applying LIFO?
VG300
Possibly not related to specific examples but when a newish recruited person is still under contractual obligation for a type rating or other training - it would really be "nice" to become redundant as then the obligation will automatically become nil and void due to the employer not being able to employ them any longer? So there might be some method in the madness of not blindly applying LIFO?
VG300
what if the person involved is a complete d1ckhead / poor at his (or her) job etc.
FWIW, the Tomson proposal was for 96 pilots to be made redundant but a scheme is under negotiation for the remaining pilots and the company to jointly contribute a sum of cash each month to keep the 96 on the books and in jobs. About Ł200 per person per month, IIRC. Keeps peeps out of the jobcentre plus gives the company some healthy flexibility in the following season(s).
I have a faint recollection that Britannia proposed a similar base closure some decades ago that involved non-LIFO but they were given some friendly advice over tea and biccies that it wouldn't go very well for them if they tried it.
I have a faint recollection that Britannia proposed a similar base closure some decades ago that involved non-LIFO but they were given some friendly advice over tea and biccies that it wouldn't go very well for them if they tried it.
We are checked for competence several times per year - more than any other profession - so ample opportunity exists to dismiss those to whom you refer.
What if the person involved is a complete d1ckhead.
To be fair I was speaking more in general terms than purely aviation (sorry for not making that clear). Surely just having a decision made on seniority doesn't necessarily mean that they are keeping the best people for the job. Don't get me wrong I am against age discrimination, but I am all for the best people being in place to do the job which doesn't always mean the person who has been there the longest.
Cor blimey.....it's a minefield innit
Topslide6
I'm not sure quite what you mean about LIFO. It is in my contract, in black and white. Do you mean that I have an illegal contract? I'm not sure where the EU bit you refer to comes in, I understood that the only question about LIFO was how it squared up to age discrimination, which, last time I looked was UK, not European, law. Please correct me if I am wrong.
I agree that case law may not have been established, yet, but that is because of reluctance of the trade unions to enter a costly court case and reluctance of the employers to risk losing. Consequently negotiated mechanisms (where there are strong enough unions) are the current vogue. IMHO the badly written legislation needs to be tested in court in order to remove doubt and excuses.
I'm not sure quite what you mean about LIFO. It is in my contract, in black and white. Do you mean that I have an illegal contract? I'm not sure where the EU bit you refer to comes in, I understood that the only question about LIFO was how it squared up to age discrimination, which, last time I looked was UK, not European, law. Please correct me if I am wrong.
I agree that case law may not have been established, yet, but that is because of reluctance of the trade unions to enter a costly court case and reluctance of the employers to risk losing. Consequently negotiated mechanisms (where there are strong enough unions) are the current vogue. IMHO the badly written legislation needs to be tested in court in order to remove doubt and excuses.
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Not a Pilot but just a Pax, however having been through this process over the last 2 months with lawyers giving me daily migraines, the legislation is full of really useful stuff (not) like selection must be 'fair' - however the agreed outcome was that selection criteria needs to be able to survive a challenge at an employment tribunal and should consist of 'hard' and 'soft' criteria
Hard being
Historic capability / rating to do the job
Amount of self certified sick leave over previous rolling 12 months
Current 'scoring' for the exact role (In your world you couldnt replace a 2 year A320 pilot with a 15 year 747 pilot who needs re-training)
Soft including
General perception of managers and seniors as a company asset
Peers comments in historic appraisals / ratings
Length of service on its own the company lawyers believed could not be defended at tribunal i.e its unfair dismissal to use this criteria
Hard being
Historic capability / rating to do the job
Amount of self certified sick leave over previous rolling 12 months
Current 'scoring' for the exact role (In your world you couldnt replace a 2 year A320 pilot with a 15 year 747 pilot who needs re-training)
Soft including
General perception of managers and seniors as a company asset
Peers comments in historic appraisals / ratings
Length of service on its own the company lawyers believed could not be defended at tribunal i.e its unfair dismissal to use this criteria
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If an airline has to make pilots redundant in base A due to the reduction in fleet size at that base, is it legal to make less senior pilots in base B redundant and replace them with the more senior pilots from base A?
My understanding is that you can only make a position redundant, not a person.
My understanding is that you can only make a position redundant, not a person.
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manintheback
Would be a bit difficult for them to argue the case with sickness as the air navigation order instructs us not to go to work if we are physically or mentally unfit for work....they would need to change that document before they could start implementing redundancies based on that.
It is a minefield really. Seniority has got to count for something hasn't it?
Would be a bit difficult for them to argue the case with sickness as the air navigation order instructs us not to go to work if we are physically or mentally unfit for work....they would need to change that document before they could start implementing redundancies based on that.
It is a minefield really. Seniority has got to count for something hasn't it?
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My understanding is that the latest interpretation of employment law allows a company to close a specific base/supermarket/office regardless of seniority....so if your base is closed you face redundancy regardless of seniority....
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nightmare!
this gets even more confusing!! bmi mainline, bmibaby and regional all use date of joining for a starting point. interestingly, many guys start at Bmi regional - lets say on the 1st Jan 2000, then join bmi baby under a transfer on 1st Jan 2006. So they join baby in 2006, but their length of service with the bmi group is from 2000. This was always a big attraction to keep your date of joining (ie seniority ) with the group, even when new to the new company (ie baby in this case). this principle works with any transfers amongst the 3 airlines. Apparently now balpa are being told this is all nonsense and date of joining the group aswell as the individual airline means nothing!
i hope that balpa stand firm and nip this in the bud and protect all the baby guys and maybe us regional lads in 2009.
can you imagine BA or any other airline allowing this to happen. I know balpa get accused of being BA's own union, but in this case i think a precidence will be set for ALL pilots in all companies for future generations if baby are allowed to get away with this.
I also hope that any bmi airline that recruits in 2009 will take the baby guys straight away over any 200hr graduates from flying schools. We all work hard every day for the group, lets hope they look after us in 2009 or when they start re-hiring again.
I also understand that the role has to be made redundant not the person, and that job title and terms and conditions have to be different and that it can be proved beyond reasonable doubt that the person laid off could not do the old job, hence the need for redundancy. I think this comes into play moreso when new pilots are needed in the future to replace the redundant roles. However as this is a "base" specific case, they would recruit for East Mids and then put guys in secondment in the BHX to get round this.
hope balpa look after you guys - we might be in your position in 2009.
this gets even more confusing!! bmi mainline, bmibaby and regional all use date of joining for a starting point. interestingly, many guys start at Bmi regional - lets say on the 1st Jan 2000, then join bmi baby under a transfer on 1st Jan 2006. So they join baby in 2006, but their length of service with the bmi group is from 2000. This was always a big attraction to keep your date of joining (ie seniority ) with the group, even when new to the new company (ie baby in this case). this principle works with any transfers amongst the 3 airlines. Apparently now balpa are being told this is all nonsense and date of joining the group aswell as the individual airline means nothing!
i hope that balpa stand firm and nip this in the bud and protect all the baby guys and maybe us regional lads in 2009.
can you imagine BA or any other airline allowing this to happen. I know balpa get accused of being BA's own union, but in this case i think a precidence will be set for ALL pilots in all companies for future generations if baby are allowed to get away with this.
I also hope that any bmi airline that recruits in 2009 will take the baby guys straight away over any 200hr graduates from flying schools. We all work hard every day for the group, lets hope they look after us in 2009 or when they start re-hiring again.
I also understand that the role has to be made redundant not the person, and that job title and terms and conditions have to be different and that it can be proved beyond reasonable doubt that the person laid off could not do the old job, hence the need for redundancy. I think this comes into play moreso when new pilots are needed in the future to replace the redundant roles. However as this is a "base" specific case, they would recruit for East Mids and then put guys in secondment in the BHX to get round this.
hope balpa look after you guys - we might be in your position in 2009.
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Last In, First Out
It is legitimate to use LIFO if it is a benefit or reward to an employee for service, and part of an overall approach to redundancy, which may have other components. In Baby's case, it is contractual, and it is my understanding that the seniority list is national. If this is the case, and a pilot can be expected to fly from any base, it could be problematic to select only those at a particular base. This is from Personnel Today, which is the HR journal...
One other thing.. the EU has got sod all to do with this, before we go down that blind alley.
Last in, first out on its last legs: legal opinion
Paula Bailey28 November 2008 18:19
Length of service has long been a central feature of any redundancy selection exercise. However, following the introduction of the Employment Equality (Age) Regulations in October 2006, use of last in, first out, which clearly relates to length of service, has been challenged in the courts. Should employers continue to use length of service as a selection criterion? Although there has been a trend for employers to shy away from length of service, it can be valuable tool when selecting for redundancy if used as part of a balanced and measured selection criteria.
Under the age regulations, selection policies based on length of service can be indirectly discriminatory. Younger employees who naturally have shorter period of service, will be more likely to be selected, although in practice this will depend on the age profile of the particular employer's workforce. Therefore, employers have to now justify using length of service as a criterion to select employees for redundancy.
To succeed, the selection policy must have a legitimate business aim, for example, to reward loyalty or to retain experienced workers. Furthermore, the operation of the policy must be an "appropriate and necessary" means of achieving those aims. Given the availability of other 'age neutral' criteria, such as disciplinary or attendance records, an employer that bases its selection mainly on length of service will have difficulty establishing that the policy was "appropriate and necessary". This will especially be the case where the policy results in the selection of predominately young employees, as one age group is disproportionately affected.
In Rolls-Royce plc v Unite the Union (2008), Rolls-Royce claimed that its redundancy selection policy, which awarded points for length of service, was contrary to the age regulations. However, length of service was only one of a number of different criteria used by Rolls-Royce to select employees and was not given a disproportionate weighting. Unite argued that it was a "sophisticated and measured" selection policy and not the "blunt tool" of last in, first out.
The High Court agreed with the union and held that the policy was justified under the regulations. The court then went on to decide that the selection policy also fell within the length-of-service exemption that allows employers to award benefits to its workforce based on their length of service. In its view, the possibility of retaining a job was a 'benefit' under the regulations. However, the court did comment that had it been asked to judge a redundancy selection policy based on last in, first out alone, such a procedure may have been "objectionable".
Last in, first out's days as a selection criterion are clearly numbered and it is likely that only in exceptional cases will its use be justified, for example, where there are no other distinguishing factors between the employees apart from their length of service, or as a 'tie-breaker' where a selection process has already been conducted based on other criteria.
However, using length of service as just one of a balanced selection criteria is unlikely to breach the age regulations, as the Rolls-Royce case has shown that it is a criterion which is capable of justification. Furthermore, unions are generally keen on using length of service - possibly because longer serving employees are more likely to be union members - and, therefore, including length of service as a criterion may well also help facilitate the consultation process in a redundancy exercise.
Key points
Employers should use a variety of different criteria to select employees to be made redundant.
Selection criteria should not disproportionately affect one particular age group.
Length of service should not be the sole or main criterion.
Using length of service as one criterion in a balanced selection policy is unlikely to breach the age regulations
Paula Bailey28 November 2008 18:19
Length of service has long been a central feature of any redundancy selection exercise. However, following the introduction of the Employment Equality (Age) Regulations in October 2006, use of last in, first out, which clearly relates to length of service, has been challenged in the courts. Should employers continue to use length of service as a selection criterion? Although there has been a trend for employers to shy away from length of service, it can be valuable tool when selecting for redundancy if used as part of a balanced and measured selection criteria.
Under the age regulations, selection policies based on length of service can be indirectly discriminatory. Younger employees who naturally have shorter period of service, will be more likely to be selected, although in practice this will depend on the age profile of the particular employer's workforce. Therefore, employers have to now justify using length of service as a criterion to select employees for redundancy.
To succeed, the selection policy must have a legitimate business aim, for example, to reward loyalty or to retain experienced workers. Furthermore, the operation of the policy must be an "appropriate and necessary" means of achieving those aims. Given the availability of other 'age neutral' criteria, such as disciplinary or attendance records, an employer that bases its selection mainly on length of service will have difficulty establishing that the policy was "appropriate and necessary". This will especially be the case where the policy results in the selection of predominately young employees, as one age group is disproportionately affected.
In Rolls-Royce plc v Unite the Union (2008), Rolls-Royce claimed that its redundancy selection policy, which awarded points for length of service, was contrary to the age regulations. However, length of service was only one of a number of different criteria used by Rolls-Royce to select employees and was not given a disproportionate weighting. Unite argued that it was a "sophisticated and measured" selection policy and not the "blunt tool" of last in, first out.
The High Court agreed with the union and held that the policy was justified under the regulations. The court then went on to decide that the selection policy also fell within the length-of-service exemption that allows employers to award benefits to its workforce based on their length of service. In its view, the possibility of retaining a job was a 'benefit' under the regulations. However, the court did comment that had it been asked to judge a redundancy selection policy based on last in, first out alone, such a procedure may have been "objectionable".
Last in, first out's days as a selection criterion are clearly numbered and it is likely that only in exceptional cases will its use be justified, for example, where there are no other distinguishing factors between the employees apart from their length of service, or as a 'tie-breaker' where a selection process has already been conducted based on other criteria.
However, using length of service as just one of a balanced selection criteria is unlikely to breach the age regulations, as the Rolls-Royce case has shown that it is a criterion which is capable of justification. Furthermore, unions are generally keen on using length of service - possibly because longer serving employees are more likely to be union members - and, therefore, including length of service as a criterion may well also help facilitate the consultation process in a redundancy exercise.
Key points
Employers should use a variety of different criteria to select employees to be made redundant.
Selection criteria should not disproportionately affect one particular age group.
Length of service should not be the sole or main criterion.
Using length of service as one criterion in a balanced selection policy is unlikely to breach the age regulations
quidquid excusatio prandium pro
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What if the person involved is a complete d1ckhead.
Someone here is trying to rewrite ancient history.
It’s the least detestable compromise we currently have, but nothing else seems to work.
LIFO may be part of your CoS. In my company, seniority is used as the criteria for promotion, demotion and redundancy as it's written into our contract - therefore it's legally binding. However, it's not a UK comapny.
I was in Virgin during 9/11 and two fleets (747 Classic and A320) were scrapped overnight. The policy was going to be redundancy in fleet as there was no redundancy policy laid down. This was far from popular, however all the recent joiners were on the 744 and LIFO would have left the now very busy 744 vastly undermanned. After lengthy discussion with the union, a LIFO policy was agreed, but not after a lot of people had been made redundant. In the end, the 744 pilots were offered unpaid leave but none needed to take it. And no 744 pilots were made redundant - the only ones who left (self included) took voluntary redundancy.
At the time, Virgin pilots were talking about the fact LIFO had to be used - but it isn't law. Barrister Fenton Bresler in his book 'Law Without A Lawyer' states that:
"It is not enough for you to be made redundant. Your employer must also prove that they were fair in their selection of employees to be sacked. Selection criteria must be rigourously adhered to. A simple policy of 'Last in, first out' is not always enough. There must be a comparative, objective analysis of all the relevant information before a decision is made."
The recent ruling in the Rolls Royce case re-inforces this point.
I was in Virgin during 9/11 and two fleets (747 Classic and A320) were scrapped overnight. The policy was going to be redundancy in fleet as there was no redundancy policy laid down. This was far from popular, however all the recent joiners were on the 744 and LIFO would have left the now very busy 744 vastly undermanned. After lengthy discussion with the union, a LIFO policy was agreed, but not after a lot of people had been made redundant. In the end, the 744 pilots were offered unpaid leave but none needed to take it. And no 744 pilots were made redundant - the only ones who left (self included) took voluntary redundancy.
At the time, Virgin pilots were talking about the fact LIFO had to be used - but it isn't law. Barrister Fenton Bresler in his book 'Law Without A Lawyer' states that:
"It is not enough for you to be made redundant. Your employer must also prove that they were fair in their selection of employees to be sacked. Selection criteria must be rigourously adhered to. A simple policy of 'Last in, first out' is not always enough. There must be a comparative, objective analysis of all the relevant information before a decision is made."
The recent ruling in the Rolls Royce case re-inforces this point.
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Who is a d1ckhead?
Quote:
What if the person involved is a complete d1ckhead
mmm. What if the manager who decides is a d1ckhead? Surely we all realise by now, one man's d1ckhead is another man's hero. The whole point of seniority is to take the arbitrariness out out of the process. We need to have a quantifiable, verifiable way of defining the order in which things happen to the group.
There's nothing wrong with the person having invested most of the time getting more of the reward. In the end we will get what we deserve. If we are too passive and allow disinterested parties to steamroller conditions of service upon us, we will have no one to blame but ourselves.
Seniority rules!
What if the person involved is a complete d1ckhead
mmm. What if the manager who decides is a d1ckhead? Surely we all realise by now, one man's d1ckhead is another man's hero. The whole point of seniority is to take the arbitrariness out out of the process. We need to have a quantifiable, verifiable way of defining the order in which things happen to the group.
There's nothing wrong with the person having invested most of the time getting more of the reward. In the end we will get what we deserve. If we are too passive and allow disinterested parties to steamroller conditions of service upon us, we will have no one to blame but ourselves.
Seniority rules!