Pilot Redundancies - is this legal?
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Pilot Redundancies - is this legal?
Pilot Redundancies – is this legal?
The following is from a thread that has recently appeared in the Rotorheads Forum. No one in that forum has commented on what I believe to be a very important aspect of employment. As compared to you fixed wing guys, we are very much the new boys on standing up to Dickensian employers, at least on the UK North Sea operations. Although not the original post author, I felt that with this forums enhanced knowledge and experience to comment would be much appreciated.
Background to the original post – a major North Sea helicopter operator has recently made most pilots over 55 years of age redundant. They immediately took most of them back on as contractors in exactly the same job/post as they previously held. Interestingly, providing them with greater pay rates than previous, however, with pension and other employment costs it would not cost the employer any extra.
The original post:
Is it legal for employers to make people redundant then take them back on ?
The idea of saying "The post you are currently filling is no longer required, we have no other posts for you to fill therefore you're out" (the definition, as I understood it, of 'redundant') and then saying "Oooh, we need pilots, we'll take this recently-made-redundant person on" would appear to be a complete nonsense and the sort of thing that employment law was set up to prevent.
The following is from a thread that has recently appeared in the Rotorheads Forum. No one in that forum has commented on what I believe to be a very important aspect of employment. As compared to you fixed wing guys, we are very much the new boys on standing up to Dickensian employers, at least on the UK North Sea operations. Although not the original post author, I felt that with this forums enhanced knowledge and experience to comment would be much appreciated.
Background to the original post – a major North Sea helicopter operator has recently made most pilots over 55 years of age redundant. They immediately took most of them back on as contractors in exactly the same job/post as they previously held. Interestingly, providing them with greater pay rates than previous, however, with pension and other employment costs it would not cost the employer any extra.
The original post:
Is it legal for employers to make people redundant then take them back on ?
The idea of saying "The post you are currently filling is no longer required, we have no other posts for you to fill therefore you're out" (the definition, as I understood it, of 'redundant') and then saying "Oooh, we need pilots, we'll take this recently-made-redundant person on" would appear to be a complete nonsense and the sort of thing that employment law was set up to prevent.
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I'd be very interested in any knowledgeable 
replies to this one.
I "have a friend" who worked for many years for a "hypothetical" major company and the same thing "hypothetically" happened....(the facts have been changed in this sentence, as if you can't tell, in order to protect the innocent....)
"We're making you all redundant"
"By the way, were forming a completely separate company, doing the same work as the company you just had to leave and guess what ? WE'RE RECRUITING ! Do you want a job on the new companies terms and conditions ?"
The terms and conditions with the "new" company were obviously cheaper for them and more productive per pound of salary, surprise, surprise.
Another funny thing is that the "totally separate company" is taking a strangely long time to separate itself from the original company.
The workforce jumped to the "new" company like a bunch of understandably frightened sheep and the unions......
UNIONS ?? Who are they and what DO they do ??
Is this disease spreading ? Is it not illegal ?
(I hope that this supports and reinforces helitubbie's question, rather than divert from it. An answer is needed and punishment, if any is due, should be applied in retrospect to the perpetrators. An informed ruling is needed.)
replies to this one.I "have a friend" who worked for many years for a "hypothetical" major company and the same thing "hypothetically" happened....(the facts have been changed in this sentence, as if you can't tell, in order to protect the innocent....)
"We're making you all redundant"
"By the way, were forming a completely separate company, doing the same work as the company you just had to leave and guess what ? WE'RE RECRUITING ! Do you want a job on the new companies terms and conditions ?"
The terms and conditions with the "new" company were obviously cheaper for them and more productive per pound of salary, surprise, surprise.
Another funny thing is that the "totally separate company" is taking a strangely long time to separate itself from the original company.
The workforce jumped to the "new" company like a bunch of understandably frightened sheep and the unions......
UNIONS ?? Who are they and what DO they do ??
Is this disease spreading ? Is it not illegal ?
(I hope that this supports and reinforces helitubbie's question, rather than divert from it. An answer is needed and punishment, if any is due, should be applied in retrospect to the perpetrators. An informed ruling is needed.)
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Anthony Carn, these are 2 different scenarios and as I understand it is covered by 2 different things in the UK. The hypothetical case you say is covered by TUPE which is a transfer of undertakings to protect employees, you would need to talk to someone more knowlegeable about it than me, hopefully this will help some what.
What helitubbie comes under redundancy and is regulated by the dti try here
You may have to involve lawyers/unions, for redundancies I know that depending on how many are involved determines how much notice a company has to give,
thirty days before the first of the dismissals takes effect in a case where between twenty and ninety-nine redundancy dismissals are proposed at one establishment within a ninety day period;
ninety days before the first of the dismissals takes effect in a case where one hundred or more redundancy dismissals are proposed at one establishment within a ninety day period.
hope that helps
What helitubbie comes under redundancy and is regulated by the dti try here
You may have to involve lawyers/unions, for redundancies I know that depending on how many are involved determines how much notice a company has to give,
thirty days before the first of the dismissals takes effect in a case where between twenty and ninety-nine redundancy dismissals are proposed at one establishment within a ninety day period;
ninety days before the first of the dismissals takes effect in a case where one hundred or more redundancy dismissals are proposed at one establishment within a ninety day period.
hope that helps
A very large can of worms can be opened on this one! The situation is covered by the Employment Rights Act 1996. (ERA96) The act is vague and confusing but has some key elements. The main one being that a person cannot be made redundant, it's his or her position that is redundant. Therefore if a person is 'dismissed for reasons of redundancy' that person would have a reasonable claim for unfair dismissal if some is re-employed in their place within a reasonable period of time - usually considered to be 6 months. There is no mention of if that person is re-employed in their original job.
There have been test cases in the past - a lot of public sector workers were laid off in the nineties to be re-employed by sub-contractors on lower pay. I don't remeber how they fared.
However, to me it sounds like you have a case, but an employment tribunal wouldn't touch it as you haven't actually lost you job therefore it would have to be a civil case. You can bet your employer has consulted his lawyers on this one and feels he acting from a position of strength.
Am excellent bookregarding all aspects of the law is 'Law without a lawyer' by the barrister Fenton Bresler. (ISBN 0-7126-8091-8). It has an excellent section on redundancy and employment law.
My advice, consult BALPA.
There have been test cases in the past - a lot of public sector workers were laid off in the nineties to be re-employed by sub-contractors on lower pay. I don't remeber how they fared.
However, to me it sounds like you have a case, but an employment tribunal wouldn't touch it as you haven't actually lost you job therefore it would have to be a civil case. You can bet your employer has consulted his lawyers on this one and feels he acting from a position of strength.
Am excellent bookregarding all aspects of the law is 'Law without a lawyer' by the barrister Fenton Bresler. (ISBN 0-7126-8091-8). It has an excellent section on redundancy and employment law.
My advice, consult BALPA.
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.....just my two penn'orth, but:
1. Save the cost of the phone call to BALPA; they'll be about as much use a chocolate underpants.
2. As I understand it, TUPE protection only applies where a company is taken over. It was, principally, a reaction to the pension-plundering of one late, unlamented R. Maxwell.
Good luck.
1. Save the cost of the phone call to BALPA; they'll be about as much use a chocolate underpants.
2. As I understand it, TUPE protection only applies where a company is taken over. It was, principally, a reaction to the pension-plundering of one late, unlamented R. Maxwell.
Good luck.
Fokker, The company does not have to be taken over for TUPE to apply. It can apply if an organisation out sources the work you are doing or if another company takes over the outsourcing. (I have seen both happen - fortunatly not to me.
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Helitubbie
If this is the operator I think it is, quite a number of their pilots retire at 55. Although some recent case law has clouded the issue of retirement age, the company is not acting illegally or improperly in rehiring these pilots after they have retired. There is also nothing wrong in changing their terms and conditions provided that the pilots agree to the new contract.
If my assumptions are wrong, please see answers already provided by others
RHRP
If this is the operator I think it is, quite a number of their pilots retire at 55. Although some recent case law has clouded the issue of retirement age, the company is not acting illegally or improperly in rehiring these pilots after they have retired. There is also nothing wrong in changing their terms and conditions provided that the pilots agree to the new contract.
If my assumptions are wrong, please see answers already provided by others
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I encountered this situation in the mid 90's with a large multi national company.
The Inland Revenue took a very dim view of company employees leaving on friday and restarting on monday doing the same job. Their definition of redundancy is that the job goes not the employee.
They then demanded tax on all lump sum "redundancy" payments. The company paid in this case to avoid the adverse publicity others may not be so lucky.
The Inland Revenue took a very dim view of company employees leaving on friday and restarting on monday doing the same job. Their definition of redundancy is that the job goes not the employee.
They then demanded tax on all lump sum "redundancy" payments. The company paid in this case to avoid the adverse publicity others may not be so lucky.
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This is all very interesting. I'm not a professional pilot myself (just a PPL!) but do do alot of employment law. The original question is: can an employer retire over 55s and then take them back on.
Employees who have passed "normal retirement age" for the job they do cannot claim unfair dismissal. So, what is the normal retirement age in professional flying? It will probably vary from company to company. If 55 is the normal retirement age then there is probably no claim. However, you have to be alive to the very real possibility that this is a bit of a smoke screen to enable the company to make redundancies without paying redundancy payments.
Assuming that the 'retirement' is lawful, then there is nothing wrong with re-employing pilots.
As regards redundancies, there not only has to be a redundancy situation, but the employers have to act reasonably in treating that situation as justifying dismissal, otherwise the dismissal is unfair. Creating redundancies and then reemploying staff in a new associated or subsiduary company to do the same job would be caught by the TUPE regulations. Under TUPE, any dismissal connected with a transfer of an 'undertaking' is automatically unfair. Under the regulations, the employees would have a claim against their new employers because on any transfer caught by TUPE all the rights and obligations under a contract of employment transfer to the new employer, including the right to claim redundancy or unfair dismissal.
Dan Winterland - I don't know on what basis you say an Employment Tribunal will not touch a claim!! The right to a redundancy payment and to claim unfair dismissal are statutory rights now contained in the Employment Rights Act. Not only will a Tribunal entertain such claims, they are the only body that can; the ordinary courts have no jurisdiction in these matters. By the way, you can no more understand the complex issues involved in these situations by reading a book than you can learn to fly from a book! Decisions emerge on an almost weekly basis from the Employment Appeals Tribunal and higher courts which have a profound influence on this area of law.
Anyone who finds themselves in this situation needs to consult an Employment lawyer immediately, and not onewho does a bit of employment now and again.
Employees who have passed "normal retirement age" for the job they do cannot claim unfair dismissal. So, what is the normal retirement age in professional flying? It will probably vary from company to company. If 55 is the normal retirement age then there is probably no claim. However, you have to be alive to the very real possibility that this is a bit of a smoke screen to enable the company to make redundancies without paying redundancy payments.
Assuming that the 'retirement' is lawful, then there is nothing wrong with re-employing pilots.
As regards redundancies, there not only has to be a redundancy situation, but the employers have to act reasonably in treating that situation as justifying dismissal, otherwise the dismissal is unfair. Creating redundancies and then reemploying staff in a new associated or subsiduary company to do the same job would be caught by the TUPE regulations. Under TUPE, any dismissal connected with a transfer of an 'undertaking' is automatically unfair. Under the regulations, the employees would have a claim against their new employers because on any transfer caught by TUPE all the rights and obligations under a contract of employment transfer to the new employer, including the right to claim redundancy or unfair dismissal.
Dan Winterland - I don't know on what basis you say an Employment Tribunal will not touch a claim!! The right to a redundancy payment and to claim unfair dismissal are statutory rights now contained in the Employment Rights Act. Not only will a Tribunal entertain such claims, they are the only body that can; the ordinary courts have no jurisdiction in these matters. By the way, you can no more understand the complex issues involved in these situations by reading a book than you can learn to fly from a book! Decisions emerge on an almost weekly basis from the Employment Appeals Tribunal and higher courts which have a profound influence on this area of law.
Anyone who finds themselves in this situation needs to consult an Employment lawyer immediately, and not onewho does a bit of employment now and again.
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> The Inland Revenue took a very dim view of company
> employees leaving on friday and restarting on monday doing
> the same job.
Are these "new contractors" considered self-employed?
The Inland Revenue may not agree. The Revenue may get unhappy if the objective is to save the company NI contributions etc. Normally the IR will only allow self-employed status if they are available to work for other companies (or something like that).
> employees leaving on friday and restarting on monday doing
> the same job.
Are these "new contractors" considered self-employed?
The Inland Revenue may not agree. The Revenue may get unhappy if the objective is to save the company NI contributions etc. Normally the IR will only allow self-employed status if they are available to work for other companies (or something like that).
