Careers Q&A
Careers Q&A Navigating redundancies, and your return-towork post-lockdown or furlough
Blair Wassman
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his year has been incredibly challenging for so many, and whilst the impact of COVID-19 is far from over, it is important that employees are cognisant of their rights. 1. My work says my role is redundant but in fact they are simply distributing my work amongst the colleagues they are keeping. Can I argue that it is not a true redundancy? Can my work colleagues refuse to take on the extra work? They are already under great pressure. If a Company has decided to restructure which leads to a redundancy situation, this is included in the definition of what constitutes a genuine redundancy in terms of section 139 of the Employment Rights Act. This includes whole business or workplace-specific closures or where the requirements for employees to perform a certain kind of work within the business has ceased or diminished. This can be achieved through consolidation of roles. This has been confirmed in a recent EAT decision of Berkeley Catering v Jackson, where it was held that a genuine redundancy situation did exist where the Company’s owner decided he was going to take over the duties of the Managing Director, and named himself CEO. As a result, the need for the Managing Director to perform that particular kind of work diminished. If it is the case that you and your colleagues all do similar work, and the Company’s intention is to achieve a headcount reduction, then there ought to be a fair pooling and selection process whereby you and your colleagues are all pooled together and assessed on objective selection criteria to determine who should be selected for redundancy. Colleagues who are left to absorb additional work after team members are made redundant may be able to refuse to take it on. This will depend on whether the additional tasks fall within the scope of their job role and whether the employer’s instruction is reasonable. In any event, where a worker has opted out of the maximum 48-hour week, they are entitled to notify their employer that they wish to opt back in – this will place a cap on the number of hours they can work per week.
2. I am suffering from anxiety at the moment due to the lockdown and have a number of additional family commitments. I have requested a reduction in hours to accommodate this for six months. Work are arguing that this will make my anxiety worse because of the demands of the job and instead suggest I do a different role which they say will be less taxing. I’m upset and feel that they are side-lining me rather than valuing the many years of work. What are my options? The best thing to do is try and reach an amicable agreement with your employer. Your employer cannot force you to accept a different role but bear in mind that this may have been offered to you with their best intentions. If you have not done so, you could make a statutory flexible working request, wherein you request that your hours are reduced for a specified period of time (i.e. six months). An employee is entitled to make one flexible working request in a 12-month period, and your employer is required to deal with such request in a reasonable manner. Depending on what your family commitments are, you have statutory rights to take time off for example, there are options to take parental leave or unpaid time off to assist your dependants. Your employer may have a policy regarding the same, and you should ask to see a copy so that you better understand what the position is concerning such types of leave and what your options are. Another option would be to ask your employer to furlough you on a flexible basis. This would allow you to work on a part-time basis (on any arrangement) and be furloughed for the remainder of the time. However, note that the furlough scheme is due to close on 30 April 2021. If your anxiety has lasted, or is expected to last, for 12 months or more, then you may be disabled for the purposes of the Equality Act 2010. If so, the employer’s duty to make reasonable adjustments may be engaged and this could extend to reducing your working hours. Continued on next page
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