It is yet to be seen whether P&O Ferries try to rely upon some of the exemptions in the legislation that apply to mariners (which don't appear to be applicable at first glance), but if those don't apply, then the potential ramifications are considerable.
So what ought to have happened? When deciding that they might require to make 800 employees redundant, first and foremost, P&O ought to have looked at how many employees were being made redundant "at any one establishment". In this case it is more than likely that the "establishment" would be the port at which the crew were based. For each port, they should have considered how many people they proposed to dismiss. For 20 - 99 employees, then there would be an obligation to consult with employee representatives for a minimum of 30 days, If the number was over 100, that period would be 45 days. They would also have to lodge a form with the Government advising them of the number of redundancies being proposed (and it is a criminal offence to fail to do this). That then enables the Government to become involved to explore whether or not there is anything that they can do to change the situation, or to help those being made redundant.
Having done that, they ought to have spent the consultation period having meetings to provide information to the employee reps and to consult them about the redundancies and the reasons for them, the aim being to reach an agreement about the process. In the meantime, no dismissal should take effect before the expiry of the 30 days/45 days. Notice of dismissal cannot be issued until after the consultation period has concluded.
It is generally accepted that consultation must take place when the redundancy proposals are still at a formative stage and employees must be given adequate information and adequate time to respond to the employer’s proposals. Attempts to reach agreement must be meaningful and genuine, and an employer must also consider whether there are any other alternatives to dismissal.
Failure to consult can result in an award of up to 90 days pay for each affected employee, and any such claim would be made as a collective claim by the employee representatives. This would be in addition to any awards made by an Employment Tribunal to individual employees for unfair dismissal. Each employee could, in theory be compensated for their actual losses up to a maximum amount of one year's gross pay.
In the meantime, P&O Ferries ought to be arranging to pay statutory redundancy payments to any employees with more than 2 years' service, as well as payments in lieu of notice (given that they did not serve them with actual notice of termination).
First published in The Scotsman.
