Laying down the law on SNH move

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THE recent news that Rural Affairs Minister Ross Finnie is ready to review the proposed relocation of the Scottish Natural Heritage headquarters from Edinburgh to Inverness will have been welcome to those fighting to retain the headquarters in the Capital, not least the SNH employees.

The Scottish Executive, as part of its commitment to dispersing public sector jobs across Scotland, announced that SNH’s headquarters were to be relocated to Inverness in 2005. Its employees are likely to be asked to relocate but those unable or unwilling to do so could face redundancy.

The proposed move has caused a furore amongst staff, politicians and the media, all of whom do not want to see the 270 civil service jobs leave the Lothians. The fall-out has reached the very top, with Jack McConnell pledging that compulsory transfers and redundancies would be avoided.

However, one wonders if the SNH employees, and more importantly, the employment law that protects them, were taken into account when the decision to move was arrived at in the first place.

It has been indicated from a survey of staff at SNH that close to 90 per cent of the staff will not relocate to Inverness. If this is a true indication, any forced office move will lead to a significant number of redundancies and the loss of the skills of the SNH workforce.

It is understood that no details of the options or the redundancy packages have yet been disclosed to SNH employees. However, it is clear that the reason behind the relocation is the Executive’s policy that public sector jobs should be dispersed around the country to areas where jobs are in scarce supply.

It has been suggested that the employees in Edinburgh who decide not to relocate and take the redundancy payment would find alternative work easily in the buoyant Edinburgh market. But is that really the case? And will it still be the case at the time of the proposed move in 2005? Many of the employees working for SNH carry out specialist scientific roles and may find it difficult to find similar work in Edinburgh or the Lothians.

In any event, there is of course the reality that, if the survey results are reflected in mass redundancies in Edinburgh, SNH will be forced to recruit in excess of 200 highly skilled staff from the Inverness area. While there may be willing candidates, will they be qualified to do the specialist work required?

The work of SNH might well be significantly affected if the existing employees who can do the work refuse to relocate and new candidates with the required experience cannot be recruited in Inverness.

There is more to this than simply redundancy payments and relocation packages. Those employees who decide to relocate will require assistance - not only in the financial sense - in order to do so. Relocation will have a significant effect on families. Housing and schools will be crucial issues for employees who consider relocating.

There are other employment law issues too. If a significant number of employees trigger the legal obligation to consult with the trade unions, consultation must begin "in good time" and, in any event, 30 days before the first dismissal takes effect, or 90 days if 100 or more employees are to be dismissed.

The consultation must include discussion about constructive ways of avoiding the dismissals, reducing the number of employees to be dismissed, and the limiting of the consequences of the redundancies.

Consultation must be with a view to reaching agreement. To that end, adequate information and time to respond must be given and any response must be conscientiously considered by the employer.

The statutory obligation to consult with employees before an employer makes multiple redundancies means that consultation must take place before a final decision on redundancies is taken. The Department of Trade and Industry must also be notified.

There is a great deal of concern being expressed about this move. The refusal of a significant body of SNH employees to move to Inverness may yet make the Executive change their minds about where to house SNH. That is an issue for the Executive and the trade unions. But it is safe to say that this issue is not yet concluded.

Ross Finnie, who initially made the decision, has been lobbied by his Liberal Democrat MSP colleagues, and a motion by two Labour MSPs, Sarah Boyack and Susan Deacon, has been tabled in parliament to push for a review of the relocation decision.

Finally, there is another note of caution for the Executive. Women tend to be the primary carers and secondary earners in a family and statistically earn less than their partners.

It is therefore likely to be the case that fewer women employees will be able to relocate than men and will face dismissal by reason of redundancy. There might therefore be an indirect challenge to the Executive’s policy on the basis that it is discriminatory to women.

Whilst the Scottish Executive will seek to justify their policy aims, which may well be valid, there is likely to be a significant challenge from disgruntled employees opposed to the move.

This situation underlines the point that decisions of this magnitude cannot be made in isolation. The "human dimension" cannot be ignored and as employment law develops, it is a dimension that could cause severe problems for those who pay it no heed.

Furthermore, could the policy objective not be met in some other way by creating new jobs in the Inverness area rather than transferring employees from Edinburgh?

Those now tasked with reviewing the decision, and ultimately SNH’s future, would do well to ensure that any future decision-making recognises the importance of employees and employment law. If not, the move could cost the Executive in more ways than one. We should watch this space with interest.

Debbie Fisher is an employment lawyer with Anderson Strathern.