COVID-19 and redundancy: know your rights

The COVID-19 outbreak has caused serious disruption to businesses, and some are now considering restructuring and redundancies. Members at risk of redundancy should be aware of their rights, explains Mariachiara Valsecchi, Senior ISM Representative – Legal Services Manager

Above: Mariachiara Valsecchi, Senior ISM Representative – Legal Services Manager Photo: Emile Holba The COVID-19 outbreak and the subsequent lockdown have forced many businesses to suspend their activity. Some have not yet re-opened or have only partially reopened. The impact of the lockdown on professional music and music education has been huge. Schools, academies, universities, music hubs and orchestras have suffered considerable losses of revenue that are only partially mitigated by the government’s grants and jobs support schemes. Some organisations are now considering restructuring, reductions in services and workforce, and ultimately redundancies. If you are at risk of redundancy, you should know that you are entitled to certain statutory and contractual rights.

The statutory definition of redundancy encompasses three situations: 1. your employer intends to close the business for good; or 2. they intend to close a specific workplace; or 3. they have a diminished requirement for employees to do work of a particular kind – in other words they need to reduce the workforce.

In the absence of any such circumstances, or any other statutory reasons for dismissal, for example disciplinary reasons, your employer cannot dismiss you on the grounds of redundancy without running the risk that your dismissal may be unfair.

In a potential redundancy situation, your employer should consult with you about the proposed redundancy. Proper consultation is fundamental to the fairness of a redundancy procedure. It should commence in good time, well before any decision is taken on the proposal. It should be meaningful, and not a bogus exercise. Your employer should arrange a meeting, or a series of meetings with you to explain the reasons for the redundancy, and how and why you have been selected for the redundancy. They should explore with you how your redundancy may be avoided, consider any alternative employment positions and answer any questions you may have. If you are not consulted properly, your dismissal may be unfair.

In practical terms, consultation should be the process through which you gather as much information as possible on the reasons for the redundancy and your selection. So, if your employer says the proposed redundancy is due to financial difficulties resulting from COVID-19, you should ask questions about these alleged difficulties, e.g. what are these difficulties? How do they link to the pandemic? Is the financial downturn temporary? What is the financial forecast for the forthcoming year? What is the projected annual fall in income? Has the employer identified potential efficiencies and savings? What other solutions have been considered to avoid your redundancy, for example, access to the Government’s Coronavirus Job Retention Scheme?

It is also very important that you scrutinise the criteria adopted for your selection. Where the redundancy involves several employees, an employer must identify an appropriate pool of employees to select for redundancy. There are no fixed rules, and the employer has a wide degree of flexibility. But the choice of the pool must be fair – and certainly must not be discriminatory. Some common selection criteria include knowledge and experience; qualification and training; length of service, disciplinary records and so on – but this will also very much depend on the nature of your job, your duties and also the employer’s restructuring plans.