Guidance for negotiators and reps: protocol for handling surplus staff situations

Efficiency and relocation support programme: guidance on the protocol for handling surplus staff situations - Revised and reissued November 2011.

This guidance is for all PCS negotiators and representatives involved in dealing with staff identified as surplus who may be facing potential redundancy, whether voluntary or compulsory.  It is designed to help you get the best outcome for those staff and – should they wish to continue their careers in the civil service – to ensure that all possible measures to enable them to do so have been taken. 

This guidance has been revised and reissued following the initial guidance. See our briefing doc for more details on how and why we have revised the guidance

  Revision notes - Guidance for negotiators and reps protocol for handling surplus staff situations

It aims to increase understanding and awareness of the procedures outlined in the Efficiency and Relocation Support Programme - referred to from here as the Protocols. Guidance on the Protocols was first produced in 2008 to coincide with their launch. Because of significant developments since the coming to power of the Conservative-Liberal Democrat coalition government in 2010, primarily the imposition of the new CSCS terms, new and revised guidance is required.  

If you have any questions or seek any advice on the operation of the Protocols, please contact the National Bargaining, Pay and Pensions Department at PCS HQ. If PCS representatives need further advice and guidance on interpretation of the Protocols they should contact, in the first instance, the PCS Full Time Officer for their Branch or Group.  Further advice can be obtained from PCS Research and Policy Officers John Medhurst (Johnme@pcs.org.uk) and Pam Cole (Pamela@pcs.org.uk) of the PCS National Bargaining Department.

What are the Protocols?

The Protocols are an agreement between the Cabinet Office and the Council of Civil Service Unions (since replaced by the NTUC), which was endorsed by Permanent Secretaries, the Cabinet Secretary and the Cabinet Office Minister. This major agreement resulted from negotiations following PCS industrial action and campaigning to protect public services and our members.

The aim of the agreement is to avoid compulsory redundancies for those who want to continue their civil service (or NDPB) careers. It aims to provide a consistent approach across the civil service and NDPBs in dealing with surplus staff situations.  It applies to all employees whether or not they are trade union members. 

Who does it cover?

It covers the whole of the civil service and “relevant” NDPBs.  For the purposes of the Protocols, “relevant” is understood to mean all NDPBs where trade unions involved in the agreement have membership (not just where a union is recognised). If your civil service department/agency or NDPB employer claims that the Protocols doesn’t cover them they are almost certainly wrong. If your employer is claiming this, please contact NBPP. 

The Protocols apply to all staff who have been identified as surplus and therefore may be at risk of redundancy.

How can you make sure it applies in your department/NDPB?

Raise the Protocols with your HR managers, check they have seen the agreement and are aware of their obligations as outlined within. Make sure you incorporate it into local agreements. These agreements must be compatible with the Protocols, and in due course should be flagged with NBPP for endorsement by the NEC.

How are surplus staff defined?

'Surplus staff' may arise in a number of ways, most usually as a result of departmental restructuring driven by cuts to departmental budgets.  Surplus staff are then defined as any permanent member of staff who, by reason of having been declared surplus by their employer, is immediately available for redeployment. 

In the case of NDPBs, some bodies may be closing entirely (such as the Government Offices or RDAs). As such, all staff in those bodies are in “closure mode” and are indentified as surplus, and the procedures of the Protocols would need to be applied to all of them prior to the closure of the organisation.   

When did it come into force?

1 April 2008. The current (November 2011) government have confirmed that it remains official government policy for dealing with surplus staff and taking measures to, if possible, avoid compulsory redundancy.  The commitments entered into by Cabinet Office and Ministers in 2008 are therefore still binding on the current government. 

What is the role of the trade union?

The Protocols are clear and explicit that trade unions will be involved at all stages of the procedure.  Local representatives and Groups and Branches will be involved on behalf of people identified as being at risk of redundancy in departments and NDPBs.  Departmental trade unions will be fully involved in consultation from the earliest stages, and the Period of Reflection process will involve a) local/departmental TU officials and b) national officials of unions as appropriate.

The Protocols says that departments with surplus staff should consult with the appropriate local trade union on redundancy avoidance measures including redeployments and voluntary exit schemes prior to formal meaningful consultation and during meaningful consultation.

Do the Protocols prevent discriminatory actions and outcomes?

The Protocols make departments and NDPBs responsible for making sure proposals relating to surplus staff are subject to Equality Impact Assessments.  The EQIA should be seen and analysed by the trade unions.

Is there advice on Equality Impact Assessments?

Yes. Contact the Legal, Equality, Education, and Policy Support (LEEPS) department at PCS HQ for more detail.  There is further information on the equality section of the PCS website:

  • Gender equality duty
  • Race equality toolkit

If you believe that there is a disproportionate impact on particular groups of staff in your bargaining unit, raise this with management and assess the response.  If it is unsatisfactory, contact LEEPS and/or NBPP depending on the nature of the concern.

What does the agreement say about agency workers and consultants?

Positions filled by agency workers or consultants should be reviewed to establish if these would be suitable for permanent members of staff whose jobs are at risk. Please be aware of the PCS policy on agency workers, which is to campaign for permanent staffing and converting agency staff to permanent status, whilst protecting the interests of agency workers where we represent them, to the extent this does not conflict with the Protocols.

And what about fixed term workers?

In many respects, fixed term employees should be treated no less favourably than permanent employees. In particular, they are put into the pension scheme and are entitled after two years to redundancy payments if they are dismissed before the end of their contract.

However if they reach the end of their contract and the contract was linked to a project that has now come to an end then their dismissal would be deemed fair. This point is not specifically covered in the Protocols, and you should be aware that there remain differences of interpretation.  The PCS position is that if these staff are entitled to redundancy then they should be covered by the Protocols, and we will seek to apply the Protocols in any event.

What should departments do to find jobs for surplus staff at risk of redundancy, or to support them in getting jobs?

Arrange for the affected staff to have access to the SJP (Single Jobs Portal), previously known as CSVACs, although as of end 2011 not all departments had yet transferred to use of the SJP, and the acronym CSVACs is still widely used. 

The employer must also support surplus staff in their job search activities by providing and facilitating a range of advice and support, both logistical and financial.  Amongst those services, the employer should provide information about options available including those in other Government departments, help staff seek other local jobs if they want to, assist them to prepare for a career move, help in CV writing and interview preparation and provide refresher skills training.

What about departments that are recruiting staff?

Recruiting departments should register details of all vacancies that cannot be filled internally on the SJP for at least 10 working days to give exclusive access and priority to surplus and pre-surplus people from other government departments. If you hear about jobs that ought to have been put on the system and have not been, please raise this with your HR department and, if it refuses to comply, with the NBPP.

Should surplus staff be given priority?

Yes, to jobs on the SJP, which are exclusive to surplus staff for at least 10 days. It is important to argue that departments with surplus staff should operate this for a longer period, and for staff themselves to monitor the SJP daily. Recruiting departments should not advertise jobs externally until after they have been on the SJP. This would be completely against the intent and spirit of the Protocols. We recommend that you try to get an agreement on how recruitment exercises are organised.

Should jobs be advertised internally first?

Yes. The Protocols say that departments recruiting staff should “register details of all vacancies that cannot be filled internally... on the SJP for a minimum of 10 working days to give exclusive access and priority to pre-surplus/surplus people from OGDs”, and should inform other departments and regional coordinators of the details. Vacancy filling issues could prove problematic in operating the Protocols so the unions will need to ensure that this is properly policed.

What is a “redundancy swap”?

A redundancy swap is a new and potentially useful initiative that will depend on helpful employers and pro-active unions.  It could be utilised to enable staff at risk of redundancy who wish to continue their civil service career to be able to do so by swapping with staff  elsewhere, either within departments or between departments, and/or NDPBs who wish to take a redundancy package but have not been allowed to by their employer. It was originally to have been facilitated by the GO network, but was put back due to the closure of the network.  Nevertheless unions should press for use of redundancy swaps, on a voluntary basis, prior to and during Meaningful Consultation.   

Voluntary exits

When would voluntary severance or voluntary redundancy come in?

Voluntary Exit (VE) and Voluntary Redundancy (VR) schemes are crucial measures to avoid compulsory redundancy, and unless there are exceptional reasons not to run these we would expect VE and VR schemes to be offered as an essential first measure by employers with surplus staff.  The employer should consult trade unions prior to formal meaningful consultation on the exact scope and schedule of these measures.

What are the selection criteria for selecting people for voluntary severance or redundancy?

These should centre on the balance of skills and competencies required for future business delivery and appropriate costs. Departmental and local trade unions should monitor the selection process to ensure that it is thorough, fair, professional and balanced, and not simply a means to squeeze a predetermined number of staff out of the door, most of whom may well be as compatible and professionally skilled as those selected in to the remaining permanent cadre. 

What is PCS' attitude to people volunteering to be made redundant?

PCS wishes to get the best possible redundancy package within the rules of the Civil Service Compensation Scheme for those that want to leave. We recognise, though, that the decision to leave or take VR may not have arisen unless those staff were first declared surplus.  This is a matter for our national campaign against public spending cuts and for enhanced job security.  

It is also the case that the coalition government’s changes to the CSCS in 2010 have ensured that many more surplus staff than hitherto may feel compelled to take a VR scheme, as for many it will now be more financially beneficial than a compulsory redundancy package (as was the case prior to these changes).

Nevertheless, and whilst PCS will criticise specific departmental budget cuts, the Protocols are not about preventing people leaving.  VE and VR packages remain important in avoiding the compulsory redundancy of staff who have stated they wish to continue their career in the civil service or a related NDPB.  The more members who want to leave voluntarily that are able to do so should minimise the number of compulsory redundancies.

Can we argue for a transfer of work to areas with staff at risk of redundancy?

The Protocols focus on finding solutions for staff identified as surplus. It does not help in arguing for movements of work. However departments will want to avoid issuing compulsory redundancy notices so it is worth putting a case to transfer work if this will help in that aim. And this can be argued for at the Period of Reflection meeting as a way to avoid issuing compulsory redundancy notices.

How does this all link with relocation? And who pays the cost of relocation packages?

PCS is opposed to compulsory relocation, i.e forced moves beyond reasonable travelling distance for individuals, having regard for their circumstances. If relocation is offered then the cost must be met by the employer having surplus staff.

Meaningful consultation

What is formal meaningful consultation, and when should it take place?

This means consultation with a view to reaching agreement with the trade unions. A formal meaningful consultation period of 90 days (a period which can be varied by agreement, but should only be lessened if local unions agree there are excellent reasons to do so) should be set up when the issue of compulsory notices seems likely and when specific individuals at risk can begin to be identified. The Protocols’ definition overrides any different definitions in local agreements. During the period 'robust efforts should be continued to avoid recourse to compulsory redundancies'.

Before meaningful consultation starts, there is a requirement that prior consultation should take place about a wide range of potential redundancy avoidance measures. It is very important that departments and other relevant bodies are required to fully comply with this provision of the Protocols.  This includes, prior to a meaningful consultation period, consultation about the terms and coverage of VE schemes in the new CSCS arrangements, which ought to be deployed, with PCS arguing for discretion to be applied in the most beneficial way for PCS members. 

Also, once the meaningful consultation period commences, the full tariff offered under VR terms (new CSCS) should be offered to all staff at risk of redundancy. 

Can departments post surplus people, and if so on what criteria?

As part of the process of avoiding compulsory redundancies, departments are advised in the Protocols that they '... should be prepared to post surplus people within their contractual entitlements and obligations. In making such postings departments should apply the following criteria:

  • business need for moving an individual
  • the lack of viable alternatives
  • staff handbook and letter of appointment
  • individual circumstances
  • legal advice.

This refers to Cabinet Office legal advice relating to staff going to another department or NDPB (see more on this below, in the criteria on the reasonableness of an alternative job offer).

What is a reasonable alternative employment offer and when does this come into the process?

This arises at the point when the issue of compulsory notices seems likely and agreed redundancy avoidance measures have been exhausted. It can be in a location outside normal contractual mobility and can be in another government department, but must be the best reasonable offer for the individual. Please note that there is a distinction between the definition in this agreement and that in redundancy legislation.

What criteria are there to say whether an alternative employment offer is reasonable?

It must be a subjective analysis, based on the circumstances of the individual and applying the criteria in the Protocols. There must be joint agreement by management, CSR and the trade unions (local and NTUC, if required) on whether an offer is reasonable.

The Protocols state ‘The following criteria should be applied to ascertain whether alternative job offers can be considered to be reasonable:

  • New job requires a balance of existing skills and competencies or ones that could be developed;
  • Similar grade, reward and terms and conditions;
  • Retraining/re-skilling provided where necessary;
  • The use of a trial period where an offer is accepted;
  • Individual circumstances;
  • Legal advice taken into account.
  • Offers will only be deemed reasonable where they can guarantee continuity of employment.’

Legal advice to the Cabinet Office states that staff cannot be required to accept a post in another department or NDPB (except in the context of machinery of government changes).

Who decides if it is reasonable?

There must be a joint agreement between all three parties - management, CSR and the trade unions.

Will it be difficult to move to another government department?

Concerns have been raised about moving to other government departments. The receiving OGD should not make it difficult for surplus staff to get jobs. Although they have maintained that that they need to have a process to see whether the individual is suitable, this should not place obstacles in their way. The protocol requires departments with surplus people to '... ensure that all efforts are taken to overcome barriers to movement across departmental boundaries to facilitate sensible transfer opportunities.'

What if the OGD has different pay and terms and conditions?

The onus is on departments with surplus staff to avoid compulsory redundancy. If the only possible option for an individual at risk is a job in another department at a lower pay rate or worse conditions, then a solution should be found that ensures the individual would not lose out financially or on other terms and conditions. This might be on a mark time basis, or a buy-out. It would normally be the exporting department that would meet the cost, and will be a better solution to them than paying redundancy costs or failing to avoid compulsory redundancy.

Can an individual at risk be put in a job which is a promotion?

Yes. If no vacancies are available at the same grade and this is the only way to avoid compulsory redundancy then the department can consider a promotion.

What if the individual does not want to be promoted?

It will be a matter of considering whether it is a reasonable offer taking into account all factors relating to that individual and the criteria included in the protocol. If management, cabinet office and the trade unions decide it is a reasonable offer and the individual refuses it then they may be considered to have acquiesced with compulsory redundancy.

What about rural areas where there are few alternative jobs?

It will depend on the particular circumstances but it is possible people might need to travel further, or there might be more use of VE schemes, or moves/relocation packages. There are some situations that can be difficult to resolve in a way that avoids compulsory redundancy.

How far is it reasonable for an individual to have to travel?

The Protocols state that a reasonable alternative offer might be outside normal contractual mobility. All factors must be taken into account including a subjective test of reasonableness based upon the individual’s circumstances. This will include issues such as disability, part-time working and caring responsibilities.

What happens if an individual refuses a reasonable offer?

As long as all three parties agree that it is reasonable then the individual will be deemed to have “acquiesced” to the acceptance of compulsory redundancy.

What if an individual is seen to have acquiesced to the acceptance of compulsory redundancy?

In the instance of an employee who – for whatever reason – is deemed to have acquiesced in acceptance of compulsory redundancy (even if that individual does not themselves agree that this is the case), then this individual will not be seen as someone who wishes to continue their career in the civil service.

How can reps be sure whether members want to continue their careers or whether they just want to leave on the best terms?

Have one to one meetings or participate in those set up by management.

The period of reflection

What is a period of reflection meeting?

This is a crucial part of the protocol process. It is a meeting of senior department representatives (usually HR), Civil Service Resourcing, NTUC/National TU officials and departmental trade union sides, and is the forum to hold departments to account by both CSR and the unions about their actions to date in helping surplus staff and avoiding redundancy.

The POR is an essential pause before issuing compulsory redundancy notices, to discuss and enable ways that could still be used to avoid compulsory redundancies and gain greater clarity on the individual situations of those staff at risk.  It is NOT simply a box ticking exercise, i.e. a point on a timetable that the employer must pass on its way to issuance of compulsory redundancy notices.  It is meant to be a genuine “period of reflection” to take stock of all the individuals concerned, to delve deeper into their particular circumstances and options, and even at this late stage to assist to them find an acceptable outcome. 

When should it be held?

Only when the department believes it has done all that is possible to avoid redundancy. It must be at least six weeks before any planned redundancy notices are to be issued.  PORs can, and often do, exceed the minimum six week period.  Also it should be noted that there is no fixed relataionship between the POR and the meaningful consultation period. 

Who agrees the next steps?

All three parties – CSR, trade unions and management -- must agree that it is time to hold a POR.  The employer cannot impose a POR, though some have tried.  However, please note that if the NTUC is to oppose the need for a POR it must be given valid reasons to do so by the local trade unions.  The NTUC will not simply repeat the opinion of the local trade unions if that opinion is not grounded in hard fact and justifiable by the terms of the Protocols.  

What would be acceptable outcomes?

Measures to resolve the redundancy issue including people accepting voluntary terms under the CSCS, being posted within contractual obligations, being redeployed within department or to other departments, being made what is agreed to be reasonable offers, or in some form “acquiescing” to being made compulsory redundant.

How much notice must be given before compulsory redundancy notices are issued, and who must be told?

CSR and relevant trade unions must be informed at least two weeks before. Departments also have to notify the permanent Secretary and Minister of their intentions or to seek approval to issue compulsory redundancy notices.

What do the Protocols say about staff who want to continue their civil service careers but who receive notice of compulsory redundancy?

Even after the issuance of compulsory redundancy, departments should continue efforts to help them find an alternative civil service position.

What is PCS policy about staff who want to continue their civil service or NDPB careers but who receive notice of compulsory redundancy?

PCS national policy is that it is opposed in principle to any compulsory redundancies.  Specifically, it opposes compulsory redundancies arising out of the massive public sector spending cuts announced in 2010 and consequent cuts in departmental budgets and staff headcount.  PCS opposition is both specific, as demonstrated in local campaigns, and general, as demonstrated in its national campaign for an alternative to spending cuts based on tax justice and social investment.   

PCS (through the NTUC) may, once the procedures outlined in the Protocols have been exhausted, agree that those procedures were fully applied and no more could have been done to avoid compulsory redundancies short of a reversal of government policy on public spending cuts.  But this would not mean it agrees with the rationale for those compulsory redundancies, and PCS may want to pursue a potential dispute by the Group or Branch concerned, within the context of the national campaign.   

Enforcing the protocols

How will the agreement be monitored and enforced?

You should contact the PCS National Bargaining, Pay and Pensions Department (NBPP) if you have any concerns and questions about the operation of any part of the Protocols. If appropriate PCS will take it up with CSR, who have responsibility together with the NTUC for overseeing the integrity of the Protocols. If notices of redundancy are issued PCS will raise any issues of concern with appropriate senior officials and ministers.

What else should local reps and negotiators do?

Keep the NBPP informed of possible redundancy situations prior to request for a Period of Reflection, and make sure you know the situation for all of your members who are at risk by having one-to-one meetings with them or participate in those set up by management.

What happens if the Protocols are not being followed?

Clearly one of the main challenges will be to ensure that the Protocols are being observed by management at local levels. If you feel this is not the case, we would take this up with the CSR directly, and with ministers as necessary. Groups and Branches must seek to make sure the Protocols are properly enforced.  If you are in any doubt contact the NBPP for advice.

What is the PCS policy on industrial action?

PCS Groups and Branches should be campaigning with members about cuts in services and threats to members jobs at an early stage, if necessary even before the process set down in  the Protocols commence, and pursuing ideas for potential industrial action. 

PCS is committed to working within the Protocols to achieve outcomes acceptable to management, CSR, and the trade unions and would not as a general rule call for industrial action on compulsory redundancies while the Protocol processes were still being worked through. However, were an employer to flagrantly ignore or subvert the Protocols so that compulsory redundancies were made more rather than less likely, PCS would reserve the right to take action. Furthermore, the Protocols do not in any way limit our scope to take industrial action on redundancies if compulsory redundancy notices are issued, even if all of its procedures have been followed.

In this context, the NEC would consider the option of industrial action should either a) the procedures of the Protocols be ignored or subverted by employers, or b) compulsory redundancy notices are nevertheless issued to people who want to continue their career in the civil service or NDPBs. Depending on timing and the wider industrial context, the NEC would decide, in conjunction with Groups, if this action should be targeted and specific or be integrated in to our on-going national campaign against spending cuts and job losses.   

If PCS representatives need further advice and guidance on interpretation of the Protocols they should contact, in the first instance, the PCS Full Time Officer for their Branch or Group.  Further advice can be obtained from PCS Research and Policy Officers John Medhurst (Johnme@pcs.org.uk) and Pam Cole (Pamela@pcs.org.uk) of the PCS National Bargaining Department.

 

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