Advice from Odin HR Consultancy

This month, Odin HR answers employer questions on redundancy

1Can I select an employee for redundancy

because they’ve been shielding?

They will probably have been advised to shield because of their age and/or medical conditions that put them at greater risk of severe illness if they contract Covid-19. If shielding is your sole reason for their redundancy selection, the redundancy could be both unfair and discriminatory on the grounds of disability and/or age, exposing you to financial penalties at an Employment Tribunal.

2Can I ask employees selected for

redundancy to leave immediately rather than work their notice?

Yes, but you must pay them upfront the money they would have earned working their notice period. This is called “pay in lieu of notice” and is taxable. Technically, if there isn’t a contract clause allowing you to pay in lieu of notice, it is a breach of contract. This doesn’t cause the employee problems usually but take advice if your employee contracts have post-termination restrictions.

3One employee with ten years’ service

has challenged his one month’s notice payment. He says he’s entitled to more – is he?

He’s correct. In addition to contractual notice periods, there are statutory notice rights set out in law, entitling employees to one week’s notice for every year of employment (up to twelve weeks’ service). An employee is entitled to the higher of the two notice periods. Your employee’s statutory notice of ten weeks is greater than his one month’s contractual notice, so you should pay him the ten weeks’ notice.

4Do I pay redundant employees on furlough

their notice at their normal rate of pay - or at their current furlough rate, which is less?

This depends on two factors: 1. Is the employee “ready and willing to work” during the notice period? This would usually entitle them to be paid their normal pay. 2. How long have they worked for you? If their contractual notice exceeds the statutory notice by more than one week (see Question 3), then you may pay the lower furlough rate during notice.

This is still a largely untested area of law and redundancy situations are particularly emotive. It may be the right thing all round to pay full notice pay if you can.

Please note that each situation is different. To get advice on your specific issues, call Odin HR for a free, no-obligation discussion.

See www.odinhr.co.uk for “Odin’s Advice” on other topics.