GIBRALTAR Law and Practice Contributed by: Nick Cruz, Marc X Ellul, Arcelia María Hernández-Cordero and Kayleigh-Anne Revagliatte, Ellul & Cruz
(if the employees are of a description in respect of which a trade union is recognised by their employer) or, in any other cases, the employees’ representatives elected by the employees in accordance with Section 76 (3)(b) of the Employment Act 1932. 6.3 Collective Bargaining Agreements Collective bargaining agreements are negotiated between trade unions and the employers or employ - ers’ associations. Collective bargaining agreements form the basis of an individual’s contract of employ - ment, provided certain conditions are met. 7. Termination 7.1 Grounds for Termination Employees with at least a year of continuous service can only be dismissed for a fair reason, namely: • a reason related to capability; • a reason related to conduct; • redundancy; • the inability of employee to continue working with - out contravening the law; or • some other substantial reason of a kind to justify the dismissal. The employer has the burden of proving the reason for dismissal. Redundancy Redundancy is a potentially fair reason for dismissal, if there is a genuine redundancy situation. Section 65 (7)(c) of the Employment Act 1932 provides that any reference to redundancy or to being redun - dant shall be construed as a reference to the fact that: • the employer has ceased (or intends to cease) to carry on the business for the purposes of which the employee was employed by the employer or has ceased (or intends to cease) to carry on that business; or • the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.
The definition of redundancy therefore incorporates three main situations: • the employer is closing down the business alto - gether; • the employer is closing down the business in the place where the employee is employed; or • the employer no longer needs the employee’s skills. Note that Employee A may be dismissed as redun - dant even if the requirement for work that they were employed to do remains the same but Employee B’s job has diminished or ceased and Employee B takes over Employee A’s job. This is colloquially known as As mentioned in 6.2 Employee Representative Bod- ies , where an employer is proposing to dismiss as redundant five or more employees at one establish - ment within a period of 90 days or less, the employer must consult about the dismissals all the persons who are appropriate representatives of any employees who may be affected by the proposed dismissals or by measures taken in connection with those dismissals. The consultation must begin at the earliest opportu - nity and, in any event, at least 60 days before the first of the dismissals takes effect. The appropriate representatives of any affected employees are representatives of the trade union (if the employees are of a description in respect of which a trade union is recognised by their employer) or, in any other case, employee representatives chosen by the employees. The consultation must include consultation about ways of: • avoiding the dismissals; • reducing the number of employees to be dis - missed; and • mitigating the consequences of the dismissals. Further, the consultation must be undertaken by the employer with a view to reaching an agreement with the appropriate representatives. “bumping”. Procedure
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