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Thanks to the unprecedented challenges presented by the COVID-19 pandemic, little has been certain in 2020 – however, it’s undisputed that the coronavirus crisis will have a severe impact on the economy. With Chancellor Rishi Sunak having confirmed that the CJRS (Coronavirus Job Retention Scheme) will come to an end on 31st October, many employers are – unfortunately – beginning to consider redundancies.
We know how stressful job uncertainty can be – particularly in such difficult times. However, if you’re concerned that your role may be at risk, it’s best to be prepared.
For more general advice, we recommend consulting our earlier blog article ‘Three things to consider if you are facing redundancy”. Below, we’ll offer some pointers for coronavirus-era redundancies, which have been informed by our recent experiences supporting both employers and employees.
Redundancies in a post-COVID world: the process
The most important thing to remember is that – even where employers are forced to make cuts due to financial difficulties – a fair process must still be followed. Should an employer fail to adhere to the correct process before making redundancies, subsequent dismissals could be deemed unfair. It’s worth mentioning at this stage that while only employees with two years’ service can bring an unfair dismissal claim against their employer, any employee (regardless of the length of service) can bring a claim if their dismissal resulted from discrimination or because they “blew the whistle” on wrongdoing.
Though the specifics of the redundancy procedure can vary from one situation to another, some essential requirements remain the same: in all cases there must be a fair selection process; potentially affected employees must be warned that they are at risk; and they should be consulted about alternatives to redundancy.
Present circumstances mean that consultation meetings may need to take place remotely, which can be difficult: any discussion about redundancy should ideally be conducted as personally and sensitively as possible. Being forced to participate in such a delicate conversation via Zoom might be an uneasy prospect. However, a bonus of this is that all calls can be recorded – provided this has been agreed in advance. You may find this helpful, as trying to take stock – and take in what’s being discussed – can be tricky if the details of the conversation are shocking or upsetting. If you aren’t permitted to record the discussion, ask your employer for a note of the meeting and review it for accuracy.
Why have I been selected for redundancy?
On learning that you have been selected for redundancy, a natural and immediate question is ‘why?’ – and your employer should be able to answer this query. If some employees have been selected and not others, your employer should be able to point to objective criteria that have been applied (for example, particular skills which will/will not be needed in the new structure of the organisation).
I’m on maternity leave. Can I be made redundant?
Yes – however, your employer is obliged to offer you any suitable alternative roles which may exist, so do enquire about these.
I’ve been furloughed. Can I be made redundant?
There’s an ‘out of sight, out of mind’ fear when it comes to furlough and redundancy. However, the two should not be confused: the selection criteria for furloughing an employee are likely to be entirely different to those which should be used for redundancy. For example, an employee might have been happy to be furloughed due to temporary childcare difficulties or health issues (the need to shield, for instance) during the lockdown – but in many cases using these difficulties as selection criteria for redundancy would be unfair (and, indeed, discriminatory).
If you think your employer is intending to utilise the same criteria for redundancy as was used for furlough, our strong recommendation is that you seek legal advice without delay.
What can I do to avoid redundancy if I’ve been selected?
If you’re satisfied with your employer’s explanation regarding the selection criteria, this need not necessarily be the end of the conversation: you could suggest alternatives to redundancy as a means of retaining employment within the organisation. These might include alternative roles in the organisation, reduced hours or pay across the workforce (a feature of lockdown generally) or individually, or other cost-cutting measures.
What am I entitled to financially?
If you are made redundant, you should be paid (whether you work it or not) for your notice period, any outstanding holiday and any other contractual entitlements. If you have two years’ service, you are then entitled to statutory redundancy pay (which is calculated based on your age and length of service).
Many employers will offer an enhanced package in return for your entering into a settlement agreement waiving claims against them. There is no legal formula for calculating this, but it is usually a function of length of service. If you have options or long-term incentives and enter into a settlement agreement, you may be a ‘good leaver’ in respect of these, which can be a real benefit. Again, we highly recommend that you seek advice if you have a significant package at stake.
Where to turn for advice
Whatever your job situation, it’s an unsettling time. Bellevue Law is here to help remove as much of the uncertainty and stress as possible. We’re an approachable and empathetic team of ex-City lawyers based in Northcote Road (and can also be found on Zoom!), were rated 9.7/10 for ‘would recommend to a friend’ in our recent client survey, and are ranked by the Legal 500 2020 for the quality of our advice for senior professionals. During the lockdown, our team has supported many employees and employers on redundancies during the pandemic.
Please contact us today for a friendly chat about your circumstances and plans.
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