Redundancy During the Covid – 19 Pandemic

Despite the considerable levels of government support, redundancies have continued to dominate the headlines in recent months. Sadly, it’s likely that this will continue through into the New Year. If making redundancies does prove necessary, it is imperative that employers follow relevant procedures correctly and fairly.

So what is redundancy?

Redundancy is one of the five potentially fair reasons for dismissing an employee. The statutory definition of redundancy provides (very generally) for three situations:

1. Business closure
2. Workplace closure
3. Where there is a ‘reduced requirement for work of a particular kind’.

A dismissal will be by reason of redundancy if it is “wholly or mainly attributable to” one of these situations.

As well there being a need for a fair reason to dismiss an employee, an employer is also under an obligation to follow a fair process to effect a redundancy dismissal.

So what does a fair process look like?

There are a number of considerations that all employers will need to factor into a fair redundancy process. The specifics will inevitably be dependent on individual businesses circumstances. What may be reasonably expected from one employer would not necessarily be the case for another in another sector and with different resources.

Planning ahead

This is really the first step businesses should be taking. This should involve financially modelling worst-case scenarios, stress testing cash flow and revisiting forecasts to gain an educated insight into what the future impact on the business will be. Where necessary, businesses should be revisiting and updating business plans (or creating a business plan if these are not already in place).

This initial step will help formulate a clearer understanding of the future labour needs of a business and assist with developing a strategy to accommodate any resulting diminished requirement. I.e. highlighting which parts of a business are likely to be impacted and in which parts redundancies may be ultimately be required.

Clearly, there will be a wide array of unique factors that businesses will have to contend with so at this point, it is important to remember that, providing there is a genuine reason for redundancy, a Tribunal will be reluctant to intervene. It is essential that businesses do not overlook this key first step though, regardless of how obvious and inevitable redundancies may be.

Identify an appropriate pool

The starting point will be to focus on the group of employees who are likely to be affected i.e. those employees whose workplace may close or those whose work in reduced demand. It may, however, be appropriate to extend this pool if there are other employees carrying out work of a similar nature (or where this is permitted under their contract). There are no fixed rules as to how the redundancy pooling should be defined other than that this should be a decision that falls ‘within a range of reasonable responses’ available to an employer. Given this ambiguity, this is a common area in which employers make mistakes. If you need advice in identifying an appropriate pool, please do get in touch as I would be happy to assist.

Selection criteria

When there is a reducing requirement for employees, it is key for employers to get their selection criteria right. The focus will, quite rightly, be geared towards ensuring the future viability of the business but employers should ensure that the selection criteria will stand up to the scrutiny of the employees to which it will be applied but also to that of an Employment Tribunal.

It is important to remember that an Employment Tribunal will not review the scoring of each individual employee and will only be concerned as to the overall selection criteria being fair. Notwithstanding this, consideration should be afforded to avoid potential discrimination when applying selection criteria. For example, when considering attendance, absences for pregnancy-related illness, maternity, and other family-friendly leave or absences due to a disability should all be discounted.

This is another key area in which employers trip up. If you require additional information regarding your selection criteria, please do not hesitate to contact me.

Warning and Consultation

The warning and consultation stage is another key part of the overall fairness of the redundancy process. As a first step, the affected employees should be placed at risk of redundancy, informed of the redundancy proposals, and given enough information to be able to understand the reasons for the proposals. Following the initial at-risk notification, an employer should carry out the scoring exercise and invite the lowest scoring employees to an individual consultation meeting (where they should be notified of their provisional selection for redundancy and invited to provide any feedback and input). An employer should then hold a further consultation meeting once any employee feedback has been considered.

Even though it might prove more difficult during the pandemic, an employer must still consult with their employees. There is no legal requirement for consulting face to face and you should therefore consult with employees via other means, i.e. over the phone or using video calling.

Employers should also be aware of whether their statutory obligations for collective consultation will be triggered. If there are 20 or more redundancies proposed within 90 days, then collective consultation will be required and the Secretary of State will need to be notified. This process will last between 30 to 45 days, depending on the number of redundancies proposed but it is important to prepare early if employee representatives need to be elected as this might impact on the statutory timeframes for collective consultation.

Alternatives to compulsory redundancy

An employer is under a duty to consider whether suitable alternative employment exists within its organisation. Whilst this is unlikely to be available in the midst of the current economic climate employers are reminded that this should be kept under constant review. To do otherwise would run the risk of a resulting redundancy dismissal being deemed unfair.

Also, a redundancy dismissal is more likely to be considered fair if an employer has considered whether it is possible to avoid or reduce the need for redundancies in the first place. This is potentially a sticking point whilst the furlough scheme is operational as, arguably, having a scheme predominantly designed to protect jobs and avoid redundancies would mean that any resulting redundancies are potentially unfair. It’s certainly likely that an Employment Tribunal will expect employers to have at least considered this.

Other alternatives to compulsory redundancy could include seeking voluntary redundancies, deferring new starters and withdrawing job offers, redeployment, unpaid leave, lay-offs, utilising holidays, or seeking agreement for salary sacrifices.

Settlement Agreements

A settlement agreement is an agreement whereby an employee agrees to waive all potential claims they may have against the employer in return for a payment. Settlement Agreements are commonly used as a vehicle to facilitate voluntary redundancy as it provides peace of mind for an employer against the risk of a claim for unfair dismissal.

An employee is usually happy to settle under the terms of such an agreement as there is often an enhanced payment that incentivises them to do so. Settlement agreements are a common area I am instructed to advise and negotiate – this could be in relation to the termination payment itself where this falls short of an employee’s statutory entitlement but could also be in connection to other clauses of the agreement i.e. providing an agreed reference or negotiating the impact of any post-termination restrictions that might apply.

Help and Advice

If you feel that a redundancy exercise might be on the horizon, a timely conversation with an employment lawyer can ensure that the correct procedure is followed. Get in touch on 0808 109 8603 or email Jamie.Riseley@poolealcock.co.uk.