Government action is needed to reform the collective redundancy process
in insolvencies, says R3 the insolvency trade body, in its response to
the government ‘call for evidence’ on the matter (closed Friday 12
The profession is calling for a number of measures including clear guidance from government and reform of the ‘protective award’ compensation regime, which currently sees the taxpayer foot the bill for incomplete redundancy consultations.
Current rules require 45 days of redundancy consultation, and alternatives to redundancy to be discussed. Insolvent businesses however, do not have the funds to comply and there are rarely any realistic alternatives. This leaves insolvency practitioners seeking to comply with the law in an impossible position.
Andrew Tate, R3 vice-president, says: “The government ‘call for evidence’ is very welcome. This is a perfect chance to embrace the calls for reform and sort out the very real problems that exist with trying to consult on redundancy when companies fail.
“Existing consultation requirements are near impossible to fulfil in many company insolvency situations. This is a hopeless state of affairs which needs to be addressed urgently.
“Clear guidance is needed from government. Insolvency practitioners will try and save jobs and businesses, but the rules on what they should do when they can’t are problematic and unworkable. R3 has called for clarity now for some time. The government needs to work with a range of stakeholders, from the unions to the insolvency profession, to achieve meaningful reform.”
Since 2009, there has been a Memorandum of Understanding between R3, the Insolvency Service, and Jobcentre Plus to enable advice to be given quickly to employees made redundant as a result of insolvency.
Andrew Tate continues: “Insolvency practitioners should always provide as much advice to employees as possible about redundancies, and the profession works closely with Jobcentre Plus to make sure help is available. However, in a fast-moving insolvency situation, with limited time and money, and where job losses are inevitable, a full 45-day consultation can often be impossible.”
“Companies can become insolvent incredibly rapidly. There may not be enough money left to pay salaries for a week let alone 45 days while consultation takes place, or even to pay for the consultation process itself. Moreover in an insolvency process the future of the business might not be clear enough for meaningful consultation.”
“The success of the MOU between R3 and Jobcentre Plus – which has helped 120,000 people facing redundancy in the last five years – shows that non-regulatory solutions are possible.”
If a full consultation cannot be completed, the insolvent company may be required to pay employees a ‘protective award’ by an Employment Tribunal. Since the company is insolvent, this award is usually paid by the taxpayer via the National Insurance Fund – the fund then seeks to recoup this payment from the insolvent company’s remaining assets later on.
Andrew Tate says: “The existing protective award scheme does not work. The current legislation intends that the awards be a penalty for non-consultation, but the company’s management has no incentive to avoid the penalty: they are no longer involved or liable by the time the penalty is awarded. The award punishes the taxpayer in this situation and there is little deterrent.”
“Even if the company management knows redundancies are likely, they can choose not consult and leave the insolvency practitioner, employees, taxpayer, and other creditors to carry the can later on.”
“A protective award in insolvency becomes a penalty borne by the taxpayer and the other creditors of the failed business. Every additional pound that the insolvent company’s estate has to pay back to the taxpayer is a pound less back to the company’s other creditors.”
(Source - R3 Press Release)