The first signs of organisational change may come from external factors such as government directives or the financial health of a company. At this stage it is important that staff are kept informed and any rumours or speculation addressed. 

Employers should be reminded of their duty to consult with staff should any organisation change be coming and that seeking staff views about potential change can build trust and invite a wider range of ideas and solutions.

Consultation with staff is not only good practice but legally required:

• Redundancy or dismiss/rehire 
  Employers must individual consultation with staff affected and consult collectively is 20 or more employees at one establishment, or within a period of 90 days or less
• Making changes to employment contracts (as above for collective and individual)
• Transfer to another organisation (TUPE)
• In matters of health and safety

As well as these criteria, an organisation is also legally required to adhere to the consultation criteria set out in a formal partnership agreement.

Consultation should be started as early as possible but legally, employers must consult:

• at least 30 days before the first proposed dismissal or redundancy, if there are between 20 and 99 employees
• at least 45 days before the first proposed dismissal or redundancy, if there are 100 or more employees

Organisational change may take various forms depending on the issues or improvements that are being considered. 

The following sections highlight some of the key changes that might be proposed but employers may use a range of proposals or some local ideas or changes.

Workforce redesign may suggest new ways of working to meet the needs of new organisational systems and processes. These could be very local or part of a bigger plan for an organisation or type of service provision.

An employer may be seeking to change the duties or responsibilities of particular job roles which could mean a change to working patterns, locations, job descriptions or contracts of employment.  As with any significant change, good practice would suggest early consultation with all staff and a comprehensive equality impact assessment. 

When a proposal includes merging with, or moving service provision to another employer, staff are protected by TUPE regulations.

TUPE stands for Transfer of Undertakings (Protection of Employment).
Under TUPE, the new employer takes over employees’ employment contracts, including:

• all the previous terms and conditions of employment
• holiday entitlement
• period of continuous employment - an employee’s start date is the same as before the transfer, so continuous employment is not broken
• any collective agreements previously made

It’s a breach of contract if the new employer does not meet the terms of the employment contract.

‘Measures’ are changes that will be made to ways of working which could include pay date, locations or working patterns.

Employers must inform all staff affected and any recognised trade union or employee representatives about a TUPE transfer and include any measures which are expected to be put in place.

If an employer wishes to reduce staff costs or close down a job role(s) they could propose a number of compulsory or voluntary schemes to enable people to leave their employment. 

Compulsory redundancy

• When an employer needs to reduce their workforce and decides a role is no longer needed.
• Employers should select staff for redundancy based in a fair and objective way.
• Redundancy terms and conditions (pay, will be set out in the organisation’s management of change policy (for the NHS in England this is section 16 of the NHS Terms and Conditions of Service Handbook) 

Voluntary redundancy

• When an employer needs to reduce their workforce and offers an opportunity for staff to volunteer for redundancy, although it is not automatic that it will be given.
• Both the opportunity and selection should be managed in a fair and objective way.
• The redundancy terms and conditions should be the same as for compulsory redundancy. 

• Could be known a Mutually Agreed Resignation Scheme (MARS) or Voluntary Early Release Scheme (VERS). The role remains open, but an employee agrees with their employer they will leave their role in return for a severance payment.
• The staff member will resign, not be made redundant which could have wider implications including benefits entitlement.
• Terms and conditions will be different to formal redundancy and could be more or less favourable. They may need to agree to specific terms and conditions, for example non-disclosure terms and waiving rights to future claims for work related injury.

• Undercutting redundancy rates - Severance payments, terms and conditions will differ from redundancy and may undercut them (for some or all employees) and was the case in a previous MAR scheme in the NHS which significantly undercut the redundancy rates contained in the NHS Terms and Conditions Handbook.  This can mean that members walk away with less than they would have under a redundancy scheme.

• Different terms and conditions - These schemes require the individual to resign rather than be made redundant and that status may impact personal finances (pension, benefits, mortgage). They will also need to agree to specific terms and conditions which could vary from those issued for standard redundancy. For example, non-disclosure terms and waiving rights to future claims for work related injury. 

• Filling vacated posts - The severance option is pitched to keep the post open while offering the person a favourable offer to vacate, however, if a post that is vacated through a severance scheme is subsequently not filled, this then qualifies as a redundancy. If the service or function of that role is transferred to another employer, then this should be considered under TUPE as part of the consultation. Both these options may have provided a more favourable settlement/alternative than resignation with severance.

• Funding severance payments - Most organisations will be clear and transparent about where redundancy costs are met. For severance payments, this is not as clear and could lead to undercut rates or wipe out any significant cost savings in the short term.

Employers should be undertaking a fair and objective redundancy or severance process and it is important to consider if any person or groups are being unfairly disadvantaged, excluded or pressured, for example:

• anyone who is absent, for example if someone is off sick or on leave
• anyone who needs information communicated in a certain way, for example because English is not their first language.
• Pressure from staff or line management to consider leaving

It could be unlawful discrimination if, for example, your employer excludes or overlooks anyone with a protected characteristic. This could be directly or indirectly, for example:

• Line managers are targeting older workers and ‘selling’ redundancy (age)
• The criteria prohibits flexible working which could indirectly discriminate against those with reasonable adjustments (disability) or those with caring responsibilities (women).

While under no obligation to act, employers must listen and respond in good faith to questions, concerns and suggestions. 

If employers decide not to make any changes, and go ahead with the original proposals, they must explain why views and suggestions were rejected. 

Ensuring a fair and objective process

• Employers need to ensure that they select employees for any change, transfer or exit through a fair and objective process. 
• As part of a full equality impact assessment, the selection criteria should be examined and monitored for fair implementation. 
• Working culture and practice should be monitored to ensure that those selected for change are not treated differently by colleagues during the process.

Support for individuals

• Individuals should be offered one-to-one meetings to discuss the proposals and answer/clarify any issues regarding transfers or agreements.
• There is no automatic right for employees to have representation at one-to-one meetings although employers may allow this as part of their policy. The RCN does not offer representation at TUPE or redundancy one-to-one meetings however we have an advice guide to help prepare and members should always contact the the RCN or their local rep if they feel any part of the process is unfair or they are being discriminated against. 
• When negotiating severance agreements (MARS/VERS), members should always seek advice from the RCN

The RCN approach to organisational change is always to:

• Oppose job losses and cuts (including on basis of H&S, workload, patient care, etc.) 
• Protect terms and conditions, for example, oppose MARS that undercut VR payments.
• Support individual members with their cases of either MARS, VR, potential discrimination, H&S issues, etc. - individual and collective (e.g., challenging discrimination).

To do that RCN reps should:

• Bring members together for information giving sessions and to plan any collective action and gather organisational intelligence. Coordinate RCN communication with members in your organisation
• Identify opportunities for members to work together to influence or lobby management/decision makers, raise questions and challenge job losses
• Participate in strategic conversations with employers and represent members in negotiations.
• Monitor the consultation process and ensure that policies and procedures are being upheld and everyone is receiving fair and objective treatment.
• Empower members to advocate for themselves, signposting them to relevant info about the proposed changes e.g. Organisational Change proposal, policy and timescales, Pensions information, Individual employment contracts At risk: one-to-one meeting checklist | Advice guides | Royal College of Nursing
• Ensure members feel supported and identify anyone that will need additional support/advice/representation and refer them to the appropriate part of the RCN