The coronavirus (COVID-19) outbreak has had a devastating impact on almost all sectors of the economy, to the extent that some businesses are having to consider making redundancies in its wake. Despite the unprecedented circumstances, employers are required to comply with their duties under the redundancy processes.
This includes the requirements in relation to individual redundancy consultation, including in relation to employees who are on furlough. Thanks to modern technology, employees who are working from home or who have been furloughed due to the coronavirus pandemic can take part in consultation processes remotely.
The organisation will need to make adjustments to ensure that it can reach out to employees and make the process meaningful. This might mean taking additional steps to ensure everyone can participate, for example by providing access to the relevant technology to those who do not already have it as well as guidance on how to use it. As a line manager you will need to be alert to situations where team members do not normally use technology to communicate with one another, and flag up to senior management any issues that would prevent meaningful consultation.
Where you are conducting consultation meetings with team members via video conferencing or the telephone, although you may be able to see their reactions and respond to non-verbal cues, it can be more difficult to gauge an employee’s understanding and the employee may be less forthcoming with their views. You will need to take extra steps to satisfy yourself that the employee understands the information being given and has a real opportunity to make suggestions relating to the potential redundancy.
When it comes to dismissing employees for redundancy during the pandemic, you should be aware of the following factors:
- Where an employee is dismissed for redundancy before the end of the Coronavirus Job Retention Scheme, they could argue that the dismissal is unfair on the basis that it was unreasonable for the employer to dismiss them while they could have placed them on furlough. However, the employer may be able to argue that their actions were reasonable as they would have had costs to bear even if the employee had been on furlough.
- You should not select for redundancy employees because they are on furlough, or because they are staying at home due to shielding/childcare responsibilities (whether or not they are on furlough). Not only could this amount to discrimination, but it is also unlikely that such selection criteria would be helpful in deciding which employees have the skills to help the organisation meet the demands of the business in the future.
- Where employees who are on furlough are within the pool of candidates at risk of redundancy, you should make sure to take account of the period before they were placed on furlough when scoring them against the selection criteria. For example, where the selection criteria includes performance, you should take account of work done before their furlough.
Where employees are dismissed for redundancy, the employer is required to give them notice and pay them a statutory redundancy payment where they qualify for one. However, you will not be able to claim furlough pay for employees while they are serving a redundancy notice period between 1 December 2020 and 31 January 2021.
For further guidance on this issue and more generally on making redundancies during the coronavirus pandemic feel free to contact us by completing our secure contact form
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