Changes in Employment – what are your rights?
The Coronavirus pandemic has, caused panic and uncertainty amongst many workers whose employers are severely impacted by the outbreak.
In response to the forced closures of non-essential businesses, many employers made fast decisions to terminate contracts, make employees redundant or place employees on furlough leave. However, the speed of which these decisions were made, and the reasoning for them, could mean that the business has acted unlawfully. For the employees affected, this could mean a successful claim for unfair dismissal.
Many employers will have acted within the law and following the correct procedures for furlough leave, lay off and redundancy. However, there will be some organisations who acted quickly and without regard to the proper legal procedures. This article outlines the main areas that employers fall short and what your rights are as an employee.
Where an employer is deciding to make only part of its workforce redundant, it is essential that a fair selection process is followed.
Your employer should have reviewed all appropriate roles for redundancy, used an appropriate selection criteria, applied that criteria fairly across the workforce and consulted with you throughout the process. Organisations must also consider alternative employment before making you redundant.
While employers may be able to justify undertaking these steps in a shorter timescale than they usually would, it is essential that each step is still taken and communication throughout the process is clear. It is highly unlikely that an Employment Tribunal would excuse an employer for failing to follow any process because of the coronavirus pandemic.
Terms and conditions of employment
Employers can ask you reduce your pay or hours of work that are stated in your contract, however you have the right to refuse or decline. It is worth remembering that your employer may be struggling and without everyone pulling together, the business may not be able to survive the economic decline.
Any attempt by an employer to universally impose a reduction to an employee’s pay will give grounds to the affected employees to terminate their employment and bring claims for unfair constructive dismissal.
Lay off and short time working
Some employees contract’s will have a ‘lay off’ clause in their standard contract of employment. This could mean that their employer can ‘lay off’ an employee without pay, or reduce their hours and pay, for an indefinite period. However, not many employers have such clauses in their contracts.
If you do not have this clause in your employment contract, your employer does not have the contractual right to lay you off without pay or reduce your hours, and doing so will give you the right to terminate your employment and bring a claim for constructive unfair dismissal.
Fair selection for Lay off and short time working
If an employer does have the contractual right to lay off employees without pay or reduce employees’ hours of work and decides to only to lay off a proportion of their workforce, it is essential that they follow a fair selection process.
The process will have similar principles to the redundancy selection process. If your employer has acted with haste and without any consideration to a fair process, it is likely that you can bring a claim for unfair dismissal.
If your employer chooses to furlough a group of employees, they must have a fair and valid reason for their selection. It is essential that your employer consulted with you prior to placing you on furlough leave.
If your employer can’t supply a valid and justifiable reason for placing you on furlough leave or not selecting you for furlough, you may be entitled to make a claim. Furthermore, in most cases your employer cannot unilaterally place you on furlough leave without your consent.
Your employer must consult with employee representatives if they are proposing make 20 or more members of staff redundant at any one establishment. These collective consultation rules also apply to employers who wish to vary employees’ contracts of employment, and there is significant opposition to such proposals throughout the workforce.
If your employer fails to consult with employee representatives, you may be entitled to compensation (90 days pay for each individual effected). Whilst employers may have a defence to such claims in special circumstances, this does not absolve employers from failing to follow any procedure at all.
It is important that if your employer is changing your role in any way, whether it’s your remuneration, working hours, furlough leave or redundancy, you are communicated and consulted with.
If your employer has failed to follow the correct procedures, then you may be entitled to compensation. The employment law team at Terry Jones Solicitors are on hand to advise and support you through this time. No matter your question, we are able to offer support and guidance at this uncertain time. Please contact us on firstname.lastname@example.org today for confidential, expert advice.< < back to latest news