March 30, 2020

The coronavirus pandemic is leading to a lot of employers feeling the need to act swiftly to safeguard their business, with making employee’s redundant or placing them on furlough leave a frequent option. However, this speed is, in turn, increasing the risk of employers being exposed to unfair dismissal claims.

Smaller employers, in particular, may not have access to professional employment law and HR advise and those that act in haste without support may find themselves facing costly consequences further down the line.

Redundancies

If you’re looking to make only a part of your workforce redundant, it is essential that a fair process is followed. Employers must give adequate consideration to establishing pools for selection for redundancies, deciding upon fair and objective selection criteria, fairly applying that criteria, consulting with employees and considering alternative employment before making employees redundant.  While employers may be able to justify undertaking these steps in a shorter timescale than they usually would, it is essential they are still taken and it is highly unlikely that the Employment Tribunal would accept the pandemic as an excuse.

Consent for changes to terms and condition of employment

If you considering placing employees on furlough leave or reducing an employee’s working hours or pay, you must have their consent. Trying to act with out consent could lead to affected employees to terminating their employment and bringing claims for unfair constructive dismissal. 

Lay offs

Some employers will have ‘lay off’ clause in their standard contracts of employment that entitle them to lay off an employee without pay for an indefinite period. Where such clause isn’t present, an employer does not have a contractual right to lay off an employee without pay, and doing so will, again, give an employee the right to terminate their employment and bring a claim for constructive unfair dismissal.

Where employers have a contractual right to lay off employees without pay and decide only to lay off a proportion of their workforce, similar principles to the redundancy selection process are likely to apply.  Employers who act with haste and without any consideration to a fair process are likely to face claims for unfair dismissal.

Selection for furlough leave

If only a part of the workforce is being placed on furlough leave, this is could create grievances among staff. To avoid claims for unfair dismissal, an employer should be in a position to objectively justify which employees have been selected for furlough leave and ideally should have engaged in some form of consultation with all affected employees. Selecting employees for furlough leave on an arbitrary basis is bound to create problems for the future.

Collective consultation

If you are proposing make 20 or more employees redundant, you must consult with employee representatives. The same rules in relation to collective consultation apply if an employer wishes to vary their employees’ contracts of employment and there is significant opposition to such proposals throughout the workforce. 

It is very important that employers recognise that throughout the present crisis they will still be required to comply with the relevant legislation concerning unfair dismissal, redundancy and collective consultation. Employment law and rights have not been suspended.

Get in touch with our employment law team at enquiries@terry-jones.co.uk for more information.

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