advogroup.co.uk |redundancy pitfalls & mistakes
common redundancy pitfalls & coronavirus related mistakes With England again in lockdown and the Job Retention Scheme extended for another month, organisa-tions may, with the constant strain of trading in challenging conditions, be considering redundancies. But take care many companies are making fundamental mistakes. Businesses that are operating, but need to continue to furlough workers can still get support for wages through an extended JRS. Guidance on this can be found on https://www.gov.uk/guidance/ claim-for-wage-costs-through-thecoronavirus-job-retention-scheme. But even with the above support staying in place, some employers may have to consider redundancies as a last resort and the Coronavirus pandemic will not be a valid excuse for skipping any necessary steps. Here we look at the common redundancy pitfalls and how to avoid them:
Not a genuine redundancy situation Some may see a redundancy as an opportunity to replace under performing employees. Keep in mind that a redundancy is where there is no longer a need for a specific job role within the business, not the need to remove a specific person. Redundancies relate to roles, not individuals. If an employer fails to prove there is a genuine redundancy situation, they could end up facing a claim of unfair dismissal.
Unfair selection criteria
Those employees may have been off for childcare reasons which may lead to discrimination claims as more women may have been furloughed as generally women take the majority of the childcare.
Whilst in the consultation process, employers should be looking internally to see if there are any roles that would be deemed as suitable alternative employment. Whether a job would be classed as suitable alternative employment is based on a variety of things:
Opinion based scoring should be avoided and more than one person should be involved so the average • How similar the work in the new of scores can be calculated and role is to their current job used. By using a range of objective • The terms and conditions of the selection criteria, this should reduce job being offered the risk of discrimination claims. • The employee’s skills and abilities to carry out the new role and Lack of consultation their circumstances in relation to With Coronavirus impacting on the the job ability to meet face to face, it is still • The pay (including benefits), vital that meaningful consultation status, hours and location in processes occur, whether that be in comparison to the current role a socially distanced meeting or via to be made redundant. video calls. For those that are making 20 or more employees redundant within any 90-day period at a single establishment, employers must follow ‘collective consultation’ rules as well as consulting with individuals too. There are specific steps to take and time frames to consider. If fewer than 20 redundancies are planned there is only the need to consult with individuals and no set time frames.
There is the requirement for a trial period in the new role too. If an employee refuses the offer of a role that is deemed as suitable alternative employment, they may forfeit their right to any statutory redundancy pay. If it comes to light that there was a suitable alternative role that was not offered then the individual may be able to claim for unfair dismissal.
If employers do not meaningfully and correctly consult with employees in a redundancy situation, it is possible that any redundancies made will almost certainly be unfair and could lead to an employer being taken to an Employment Tribunal which may result in a costly award to the employee.
Also remember that those on familyrelated leave such as maternity, adoption etc. should be given preference when there is suitable alternative employment available.
The selection process for a redundancy should be fair. In order to do this the selection criteria should be transparent, consistent and objective. For instance, you cannot use last in, first out alone as a reason as this may lead to age discrimination claims as it may negatively impact the younger employees. Another example would Making no offer of suitable be automatically selecting those alternative employment where furloughed for redundancy.
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advocate autumn 2020 | advogroup.co.uk | 12
If you find yourself having to consider redundancies, please do get in touch as we can provide advice and template documentation to enable you to be legally compliant throughout the process.
