At this time and even with support in place, some employers may have to consider redundancies as a last resort. The Coronavirus pandemic will not be a valid excuse for skipping necessary steps. advo hr looks at the common redundancy pitfalls:
Not a Genuine Redundancy Situation
Some may see a redundancy as an opportunity to replace underperforming employees. Keep in mind that a redundancy is where there is no longer a need for a specific job role within the business, not the need to remove a specific person. Redundancies relate to roles, not individuals. If an employer fails to prove there is a genuine redundancy situation, they could end up facing a claim of unfair dismissal.
Unfair Selection Criteria
The selection process for a redundancy should be fair. In order to do this the selection criteria should be transparent, consistent and objective. For instance, you cannot use last in, first out alone as a reason as this may lead to age discrimination claims as it may negatively impact the younger employees. Another example would be automatically selecting those furloughed for redundancy. Those employees may have been off for childcare reasons which may lead to discrimination claims as more women may have been furloughed as generally women take the majority of the childcare.
Opinion based scoring should be avoided and more than one person should be involved so the average of scores can be calculated and used. By using a range of objective selection criteria, this should reduce the risk of discrimination claims.
Lack of Consultation
With Coronavirus impacting on the ability to meet face to face, it is still vital that meaningful consultation processes occur, whether that be in a socially distanced meeting or via video calls.
For those that are making 20 or more employees redundant within any 90-day period at a single establishment, employers must follow ‘collective consultation’ rules as well as consulting with individuals too. There are specific steps to take and time frames to consider. If fewer than 20 redundancies are planned there is only the need to consult with individuals and no set time frames.
If employers do not meaningfully and correctly consult with employees in a redundancy situation, it is possible that any redundancies made will almost certainly be unfair and could lead to an employer being taken to an Employment Tribunal which may result in a costly award to the employee.
Making No Offer of Suitable Alternative Employment Where It Is Available
Whilst in the consultation process, employers should be looking internally to see if there are any roles that would be deemed as suitable alternative employment. Whether a job would be classed as suitable alternative employment is based on a variety of things:
- How similar the work in the new role is to their current job
- The terms and conditions of the job being offered
- The employee’s skills and abilities to carry out the new role and their circumstances in relation to the job
- The pay (including benefits), status, hours and location in comparison to the current role to be made redundant.
There is the requirement for a trial period in the new role too. If an employee refuses the offer of a role that is deemed as suitable alternative employment, they may forfeit their right to any statutory redundancy pay. If it comes to light that there was a suitable alternative role that was not offered then the individual may be able to claim for unfair dismissal.
Also remember that those on family- related leave such as maternity, adoption etc. should be given preference when there is suitable alternative employment available.
If you find yourself having to consider redundancies, please do get in touch as we can provide advice and template documentation to enable you to be legally compliant throughout the process.
In the first instance email us on email@example.com to start a conversation.