Now that the arrangements for the end of the Coronavirus Job Retention Scheme (or furlough scheme as it has become known) have been published, it is focusing employers’ minds on their post-lockdown staffing needs. In many cases, this means considering redundancies.
However, given the downsides that redundancies can bring for the employer, in terms of loss of skills and experience and the effect on morale of the remaining employees, many employers are looking at alternative ways of avoiding, or at least reducing, the number of redundancies, something that they are in any event bound to at least consider if they want to avoid unfair dismissal claims.
This Q&A takes a look at some of the most commonly asked questions….
There are in theory few limits on the alternatives that can be proposed, albeit that it is sensible to propose those which both achieve commercial and operational objectives as well as being likely to have some appeal to the demographic of the employer’s workforce.
Possible alternatives to redundancy include the following:
There will always be some, particularly those with long service, who might be entitled to a reasonable sum on redundancy or who don’t rely upon their income for living costs, who would prefer to be made redundant.
However, the enormity of the impact of Covid-19 upon many businesses means that employees are generally more likely to be willing to consider such options than might otherwise be the case, as they know that the likely alternative is mass redundancy, and possibly difficulty securing another job. There will also be employees who would prefer to have a break from work, or work less or more flexibly while they deal with family obligations such as caring for children who cannot attend school or other family members who might need to self-isolate until the pandemic is over.
This depends upon whether what is being proposed involves a change in terms and conditions (even a temporary one) or whether there is sufficient flexibility within the existing contract of employment to impose the change.
However, employers should proceed with caution as just because the contract authorises the employer to make a particular change, it doesn’t automatically mean that it can just go ahead and do so. Any contractual right needs to be exercised in a reasonable manner to ensure that it doesn’t breach the implied duty of trust and confidence that all employers owe to their employees.
The best way to secure any change to terms and conditions is with the consent of the employees concerned (or where a trade union is recognised for these purposes, such changes being agreed with the union). Not only is this more straightforward, but persuading the employees of the need for the change and keeping them onside, is also likely to lead to a more loyal and productive workforce going forward, something that is going to be key in supporting the employer’s business through what are likely to be challenging conditions ahead. Any agreement to changes to terms and conditions should always be made in writing.
When looking at changes as an alternative to redundancy, it is likely to be a case of all the employees (whether across the business or the affected departments and/or roles) having to agree to the change(s) or redundancies being made.
However, if the employer is instead looking to force through the changes in relation any employees who are not willing to agree to them after due consultation, the options are either for it to:
Both options come with risk – in particular, the first of an unfair dismissal claim, the second of employees resigning and claiming constructive unfair and/or wrongful dismissal. Unsurprisingly, the second option is much riskier than the first. However, the extent of the business need might well justify the risk of the first option, assuming the employer properly consulted the affected employees about the proposed changes and attempted to reach agreement with them first.
If at any point an employer considers that it will dismiss (including making redundant) any employees who do not agree to the proposed changes and the number of dismissals or redundancies involved might be at least 20, the employer will also be obliged to comply with collective consultation obligations before effecting any dismissals in addition to consulting with the affected employees individually. Failure to do so could lead to liability for a protective award of up to 90 days’ gross pay per affected employee.
If you would like to discuss the legal implications of your options on alternatives to redundancy with our employment law solicitors in Bournemouth, please contact Deborah West on 01202 294 566 or email [email protected].
Excerpts from this article first appeared in Bournemouth Daily Echo.
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