The outbreak of Coronavirus in the UK is cause for concern for many employers, some of which have felt the need to act quickly to ensure the longevity of their business. Several employers will need to make redundancies or place staff on furlough leave.
There is a connection between the speed in which these decisions are made, and the likelihood of employers being exposed to unfair dismissal claims.
The risk of employers being exposed to unfair dismissal claims is higher in smaller businesses that do not have access to professional employment law or HR advice. However, organisations who act in haste, without any legal support, may also find that they are opening their business up to costly consequences further down the line.
Whether you’re looking to make an individual or a team redundant, it is vital that you follow a fair process throughout.
Employers are obligated to give adequate consideration to which of their employees they are selecting for redundancy and why. Creating and implementing fair selection criteria, applying it without bias, consulting openly with employees and considering alternative employment are all essential steps in the redundancy process, regardless of the reason for redundancy.
Given the current economic climate, employers might be able to justify a shorter time frame for the redundancy process. However, it is essential that each step is still taken and adequately documented as it is unlikely that an Employment Tribunal would accept the Coronavirus pandemic as an excuse for bias toward an employee.
If you need to place employees on furlough leave or reduce employee’s working hours or pay, you must obtain their consent prior to these changes being made.
Implementing these changes without an employee’s consent, will mean that the affected employees have the right to terminate their employment and pursue a claim against your business for constructive unfair dismissal.
The global pandemic is seeing people pull together. More often than not many employees are willing to be flexible when it comes to pay and working hours, to help keep both themselves and their colleagues in a job. Communication is key, opening a honest dialogue with employees at this time is essential, and will help promote a stronger, healthier working relationship in the future.
As an employer, you may have a ‘lay off’ clause in your standard employment contract. This will allow you to lay off an employee without pay for an indefinite period.
However, if you do not have this clause in your employment contact, you do not have the contractual right to lay off an employee without pay. If you lay off an employee whose contact does not have a lay off clause in, the employee has 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, it is important that the process for choosing which employees to lay off is done fairly. Employers that act quickly without consideration to a fair process are likely to be exposed to claims for unfair dismissal.
If you choose to Furlough selected members of staff, this can potentially cause friction between the staff chosen for furlough and the staff that were not selected. In order to avoid claims for unfair dismissal, employers should justify the parameters they are using to select employees for furlough and communicate clearly with all staff. Selecting employees for furlough leave on an arbitrary basis could lead to problems in the future.
In the unfortunate event that your business needs to make 20 or more employees redundant, you have a legal obligation to consult with employee representatives.
It is important that employers understand that the present crisis does not change employees’ legal rights. Businesses will still be required to comply with the relevant legislation concerning unfair dismissal, redundancy and collective consultation.
If you have any questions regarding any of the Employment law matters discussed in this article, please get in touch with our Employment law team on 02392 50 55 00 or email enqs@donnelly-elliott.co.uk
