The Coronavirus pandemic has caused a lot of uncertainty for employees.
In response to the enforced closures of businesses, many employers made fast and drastic decisions to terminate contracts, make employees redundant or place employees on furlough leave.
The speed in which these decisions were made, and the reasoning for them, could mean that the business has acted unlawfully and effected employees may be entitled to make a claim for unfair dismissal.
This article outlines the main areas employers may have fallen short and what your rights are as an employee.
If an employer has to make a part of its workforce redundant, it is essential that a fair selection process is followed. This means that your employer must review all appropriate roles, formulate an appropriate selection criteria, apply the criteria fairly and consult with you throughout the redundancy process. The organisation must also consider alternative employment before making you redundant.
While employers might be able to justify undertaking these steps in a shorter timescale than usual, it is still essential that each step is taken and you are clearly communicated with throughout the process. It is highly unlikely that an Employment Tribunal would excuse an employer for failing to follow any process because of the Coronavirus pandemic.
Employers can ask you reduce your pay or hours of work that are stated in your contract, but this is only a request. You have the legal right to refuse or decline a pay cut or working hours. It is worth remembering that your employer will be struggling and without everyone pulling together, the organisation may not survive the economic decline.
Any attempt by an employer to unilaterally 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.
Some employment contracts will contain a ‘lay off’ clause, which that means that their employer can ‘lay off’ an employee without pay, or reduce their hours and pay, for an indefinite period (most employers do not have such clauses).
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 working hours. By doing so, this will give you the right to terminate your employment and bring a claim for constructive unfair dismissal.
If an employer does have the contractual right to lay off their employees without pay or reduce employees’ hours of work and decides to only to lay off a proportion of their workforce, is it legal requirement that they must 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, they are likely to have acted unlawfully and could face claims for unfair dismissal.
If your employer made the decision to furlough a group of employees, they must have had a fair and valid reason for their selection. Your employer should have 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 leave, then you may be entitled to make a claim. Furthermore, in most cases your employer can’t place you on furlough leave without your consent.
Your employer must consult with employee representatives if they are proposing make 20 or more employees redundant at any one establishment. These collective consultation rules also apply if an employer wishes to vary their employees’ contracts of employment and there is significant opposition to the proposals. If your employer fails to consult with employee representatives, you may be entitled to compensation (90 days pay for each individual effected).
It is important that if your employer changes your role in any way, whether it’s your remuneration, working hours, placing you on furlough leave or making you redundant, you are communicated and consulted with. If you employer has failed to follow the correct procedures, then you may be entitled to compensation.
The employment law team at Donnelly & Elliott 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 enqs@donnelly-elliott.co.uk for confidential, expert advice.
