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An overview of the preparations to consider to be future fit as we enter a period of change within the Education sector

Whilst COVID-19 has no doubt been the catalyst for change in education delivery models, many organisations were, prior to the lockdown in March, harnessing the availability of technology to deliver education in different ways. The shift to greater use of online learning tools combined with the general need to manage the ongoing impact of the pandemic means that universities are facing a wide range of associated staffing issues. In our discussions with clients the following key areas of concern are top of the list.

Redundancies and restructures – academic staff

Whilst reduced student numbers (whether overall or course-specific) remains the key reason for organisations to be considering whether their staffing levels are right for now and the future, online delivery is likely to require fewer staff and will no doubt result in some reductions in academic and associated learning delivery staffing. The simple fact is that one lecturer is able to address a wider group of students whether that is in a lecture or in online workshops and tutorials, particularly if not all sessions are delivered live. Fewer face to face sessions also means a reduced need for associated support staff.

Where you are considering reductions in staffing numbers you need to have at the forefront of your mind whether the duty to collectively consult will apply. Where an organisation proposes to dismiss as redundant 20 or more employees within a 90-day period, they must consult for a minimum of 30 days prior to the first notices of dismissal taking effect. Where the proposal is to dismiss as redundant 100 or more employees within a 90-day period, that consultation must take place over a period of 45 days. More importantly, consultation should begin before decisions have been made and in our experience that is where a number of organisations fall down, as they make the decision and then consult.

The duty is to consult with the recognised trade union representatives and where there are none (for example where the trade unions are not recognised for a particular grouping of staff), and no other staff representatives are in place for this purpose, employee representatives will need to be appointed which will inevitably increase the timescale.

It is important to also consider the alternatives to redundancy, especially if you view the need to reduce as a short term measure. Sabbaticals and career breaks can be an attractive option to some and can achieve the required savings in the short term whilst retaining skills you will require in the future.

Redundancies and restructures – non-academic staff

Reductions in the number of people on-site may mean that you have fewer buildings open and fewer facilities available such as cafes, sports facilities etc. Where this is the case there may be a reduced need for staffing. In this scenario you should consider whether there are redeployment opportunities for those staff likely to be displaced either on a temporary or permanent basis.

As with academic staff the key concern will be whether the collective consultation provisions apply.

You may also need to consider the impact on third party staff where, for example, you outsource particular services. Whilst typically you will not have any liabilities for people you do not employ, it is not uncommon to find, in commercial outsourcing contracts, provisions requiring you to contribute to redundancy costs where you reduce the service requirements on a contract. Your outsourcing contracts will therefore need to be reviewed.

Changing terms and conditions

To avoid redundancies or simply to meet the changing needs of the organisation it may be necessary to make changes to terms and conditions of employment. We have increasingly seen organisations seeking to agree reduced working hours with employees in order to avoid the need to reduce staff levels in the short term.

The starting point should always be to try and obtain agreement to the change through negotiations with the recognised trade unions and the individuals affected. Key to this will be putting together a detailed business case setting out the reasons for the changes and where this is with a view to avoiding redundancies, the number of roles you expect to save.

Where it is not possible to agree the changes, you will need to consider giving notice to terminate the current contracts of employment and to offer the new terms as a suitable alternative. This should only be done as a last resort where agreement cannot be reached and other options have been exhausted. In this situation you should take advice and consider whether the costs of termination will deliver the requisite savings.

Performance concerns and student complaints

The move to online delivery means that there is a greater prospect that lectures and workshops etc. will be recorded either officially by the university or unofficially by students. Where this is the case and there are concerns about performance or complaints raised by students, those recordings will become of critical importance. You therefore need to ensure that lecturers are aware that their classes may be recorded and that those recordings could be referred to in the event of complaints about performance or similar by students.

Linked to this, some staff will struggle with the technological requirements of the shift to online delivery and you will need to ensure that appropriate training and support is provided. Where training does not result in the necessary improvements, you may need to consider commencing a formal performance management process.

Reluctance to attend on site

Some staff will be keen to be back on site whereas for others this may cause concerns. Where you have employees who are reluctant to return to face to face teaching or being on site for some or all of their working time, the starting point should be to meet with them (virtually if necessary) to try and establish the reasons for their concerns. Where these are related to their own health (particularly if they would be classified as a disabled person under the Equality Act 2010) you will need to explore with the employee what those concerns are and consider whether a referral to occupational health would be beneficial.

Essentially you will need to take into account the employee’s concerns and whether you are able to adequately address these with your Covid-safe workplace plans. Where you are unable to reach an agreement with the employee about their attendance on site, you will need to consider if there are any alternatives (an alternative role where it is not possible to carry out their own role remotely or working from home where this is possible) and if not, whether you wish to treat the matter as a disciplinary matter. Each case will depend on its own facts and therefore whilst consistency in approach is desirable, individual circumstances will likely dictate a tailored response for each person.

Evidently we are entering a period of change in the sector as organisations prepare themselves to be fit for the future.

For further support and guidance, contact our employment law solicitors.

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