Careers Q&A

Careers Q&A

Careers Q&A

Navigating redundancies, and your return-towork post-lockdown or furlough

This 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.

Alternatively, if you have been booked off sick for a period of time, it may be helpful to speak with your Company’s occupational health provider, and perhaps a phased return would be more suitable to allow you to return to work gradually.

3. I think I have been selected for redundancy because I have a disability (dyslexia). Previously, my employer was very supportive, and I had assistance from a PA. This has been difficult whilst working from home and probably has slowed down my rate of work. Do I have a case for objecting?

In a redundancy situation, and to avoid discrimination, the selection criteria used to determine which employees are selected for redundancy must be objective and fair. Therefore, if your rate of work has slowed down and you are concerned that this may or has detrimentally affected your scoring in the redundancy selection process, you should certainly point this out to your employer. As part of the redundancy consultation process, you ought to ask questions such as, who made the decision to select you for redundancy and when, has there been a selection process, what criteria were used, and ask to see your scores. If the answers lead you to believe that your employer has been unfair and your disability or performance as a result of working from home is a factor in the decision, you may consider raising a grievance about your unfair selection and that this is linked to your disability. If the only reason you have been selected or have scored lower than your colleagues is because of your disability, or the effect of the selection criteria is that you have been treated unfairly, your employer should arguably take into account the period before you were working from home as part of your assessment to avoid being either directly or indirectly discriminatory. Even though the selection criteria applied on the face of it may be fair, if they are unfairly applied, any dismissal as a result would be unfair.

Employers are obliged to make reasonable adjustments in the workplace. It seems that these were in place before you started working from home, and such adjustments should extend to your homeworking, as arguably this has become your “workplace” during lockdown.

4. I am being made redundant at 3 years PQE. It’s been decided on hours/income produced and my score is low. This is because, during the first lockdown, I took furlough voluntarily as I had two young children to look after who could not go to school.

This is a similar situation to the previous question, where an employer has arguably looked at the wrong performance period when applying its selection criteria. If performance over a specific period is going to form part of the selection criteria, the employer should choose a performance period which places all employees in that selection pool in the same position and on an equal footing, i.e. where external factors, such as furlough were not at play, and you were working your full hours.

In addition, it seems that there could be an element of discrimination at play as well given that the reason you took furlough voluntarily was to care for your children.

5. I feel completely demoralised after months of furlough and now I have been made redundant. Any suggestions on how to rebuild my confidence?

Firstly, know that you are not alone. There are so many employees who have found themselves in similar situations this year. If your previous employer has provided you with services such as outplacement support, you should take full advantage as this can assist you greatly with putting yourself back into the market and rebuilding your confidence.

Remember that potential employers are acutely aware of the motivation behind most redundancies, a global pandemic. Whilst it is not always easy, try and look at this positively and see this as an opportunity to forge a new path for yourself. For many, the lockdown period has led to exciting career developments, or even a career change.

This is an uncertain time, and many of us are finding ourselves in unique situations, regarding legal issues which are new and unchartered. In all of the instances above, a great deal will turn on the facts and the chronology of events. As such, it is advisable to seek legal advice early to ensure that the correct steps can be taken at the right time. ■

Blair Wassman

Blair Wassman

Associate | BDBF | Employment Law

We cannot respond to individual queries but if you have a careers question you would like discussed in our next edition, please send these to Coral@LegalWomen.org.uk. The questions are all published anonymously.