The Legal Minimum?

There are few businesses out there that have not had to restructure at some time or another. Sometimes its because their market has gone downhill and they need to ‘retrench’ and at other times its because they need to grow and re-invest in technology. Either way jobs change and some jobs are removed or ‘dis-established’.

When these situations occur good companies have always worked things through with their employees and managed the change with integrity and with respect for those whose lives will change. Of course, not everyone does it well and in my ‘leading through transition’ workshops I give a few examples that I have seen where distinct lack of empathy was shown.
Its because of those businesses who don't see the benefit of managing change well (and there are many), that laws are put in place. Whatever country you are reading this from I know that you will be subject to some laws that are meant to protect employees from poor management practice. In New Zealand we are no different and have laws that require us to consult with our employees on the proposed changes that an employer wants to put in place. I can see the good intentions behind that idea. A good employer should want to engage with their workforce to work the changes through and would want their ideas in how best to implement the change. In the past, before such legislation, I have tried that approach and honestly explained the problem and opened up discussions with the workforce. Unfortunately it doesn’t really work and that is the first of the two problems with the legislative approach to managing restructuring.
The first thing that crosses anyones mind when you say that you have to bring about change in the business and that means some jobs have to go or change is that people are immediately concerned about ‘me’. What do you think would happen if you tried engaging in a decent wide ranging conversation to explore all ideas and options when you are thinking ‘this could mean I lose my job’ or ‘this could be a nice tidy sum and early retirement’? Natural human instincts of self preservation come in and you don’t have an honest conversation at all. The only person that you have such a conversation with is someone who is not affected. What happens when engage with the workforce in this way is that they soon say ‘You are management! Its your job to sort these things, why haven’t you done it?’
And soon you are back to the original approach of management coming up with a proposal and then talking it through with the workforce.

And then the second problem with the legislative approach comes in. The thing about the law is that it is open to interpretation. In fact there are people whose whole livelihood depends on their ability to interpret it differently and win. That means the law is never truly fixed and you are always looking at the last case and the last interpretation. This means that every time you start a consult you are spending a lot of your time trying to avoid being the next test case because going to court costs a lot of money with those guys who enjoy debating the law that you didn’t intend to break in the first place.
And how do you avoid being another case? By managing your proposal and process as tightly as possible. In fact in many cases the employer choses to follow a line of doing the legal minimum. Its often easier, as the less you say the less likely you are to get in to trouble. In addition you minimise risk by working the possible restructuring down to the tightest option. That means there is not a lot to discuss with the workforce as there are no real options. In fact I have sat with employers who have moved away from the smartest decision for the business, and in the long run their people, because that choice could result in a challenge in court.

Simplistically the less you say and the tighter the options you offer, the less likely you are to be really consulting and that defeats the higher intent of the reason for the legislation in the first place.

Why has this happened? Well, the courts have got wary of people who use restructuring as a way of managing performance and that means many of the actions in court and the decisions being made are to make it tougher on employers who may be trying this. Of course it is another story to consider why it could be easier to manage a restructuring than to manage poor performance but lets leave that aside. The point is that some employers try this route and the more they do so, the tougher the courts will make their testing of cases to see if it was a true consult.
Can we change it? I’m not sure whether we can unless the legislation is overhauled, but it may help if employers restructure when they need to restructure and manage performance when that is required!