There’s a lot of uncertainty right now. Uncertainty is stressful. This article is intended to bring a greater level of understanding and certainty to an area that we believe will be increasingly important over coming weeks: your employment rights.
The broader economic picture is looking bleak. As of the end of May, the Government is paying for companies to furlough 8.7m employees, over one-quarter of the workforce. Despite this historic intervention, 856,000 new applications for Jobseekers Allowance and Universal Credit were made in April 2020. With GDP contracting, it’s quite likely that, at least in some parts of the economy, we will see significant numbers of additional redundancies over coming months.
British Airways has already committed to making 12,000 of its 42,000 staff redundant, with Virgin set to cut around one-third of its workforce. In prior economic downturns, airlines have acted as bellwethers – letting us know which way other sectors of the economy are headed. And we read regular press reports predicting large-scale redundancies across the manufacturing, retail, leisure and hospitality and professional services sectors.
With businesses which have furloughed employees required to contribute towards their costs from July onwards, and the furlough scheme due to close at the end of October many employers are now looking at the right shape and size of their business in light of the changed economic outlook.
If you are concerned that your role may be at risk in the coming months, it’s best to be prepared for what might come next.
Our article “Three things to consider if you are facing redundancy” provides some practical pointers if you find yourself at risk. We hope that it brings you greater certainty. Below we offer specific guidance for Coronavirus-era redundancies, based on our recent experience supporting both employers and employees through the process at this particularly challenging time.
Consultations may feel less personal than if they were face to face…
Previously, most employers would try to convene discussions about potential redundancies as personally and sensitively as possible, with consultation meetings taking place face to face. In light of our current circumstances, however, the process is likely to take place remotely over Zoom or Teams. While, by now, you will probably be used to videoconferencing, you might want to think about how and when you arrange to have this call, or any subsequent calls, to allow you to focus and speak freely.
…but these calls can be recorded
Of course, the one advantage of these calls is that you can record a Zoom call or a Teams call. You’d need to agree this with the other attendees but we would certainly encourage you to ask. Taking on information at this stage is often challenging as an employee as the announcement may have come as a shock, and it can also be difficult to participate in the discussion and take notes at the same time. It may be uncomfortable to watch again, but it’s quite likely to be useful for any issues outlined below.
Have I been fairly selected?
If you have been furloughed, you should consider, and ask, whether you may have been placed at risk of redundancy because of this.
Many employees were – quite legitimately and often at their own request – placed on furlough due to their own health risks or those of family members or the need to provide childcare. When it comes to selection for redundancy, different considerations should apply, and it would often be unfair and/or discriminatory to select an individual for redundancy for these reasons. In some cases, however, there is a danger that employees who have been out of sight during lockdown may also be out of mind, and employers may – consciously or unconsciously – automatically select them for redundancies.
You should ask the grounds on which you were selected. If it seems to have been purely on the basis that you were already furloughed – or if it is due to health or caring responsibilities – then you should take some external advice.
Have I been unfairly treated whilst on furlough?
We are hearing many stories of employees who have been asked to work during furlough. This is not what the Government intended and – until 1 July 2020, when “flexible furlough” will be introduced – employers are not entitled to ask furloughed staff to perform any work (although they may undertake training).
Other employers have claimed furlough grants backdated to 1 March 2020 when most employees were actually at work until after the furlough scheme was announced on 20 March 2020. The backdating provision was intended to allow employees who had left an employer in early March to be re-employed and furloughed, not to cover those still working during that time.
If you have raised concerns around the process and feel that you have subsequently been selected for redundancy, then you may well have a whistleblowing claim. Again, it’s best to take advice.
Have I been selected due to raising health and safety concerns?
As many businesses contemplate a return to the office, some employees feel uncomfortable about the prospect. Maybe you are concerned that your employer hasn’t taken sufficient steps to keep staff and visitors safe, maybe you are concerned about your journey to work and maybe you have health concerns which would make a return to the office riskier for you.
Again, if you have raised these concerns and feel that this contributed to your selection for redundancy, you should take legal advice.
How do I get my things back or return company property?
If you do leave the business, you will need to return company property, and may need to collect belongings you left at work before lockdown. Ordinarily, this would take place ahead of your termination date, but it may well be that it’s just not practical at present. In this case you will need to make arrangements with your employer or in your settlement agreement to do this as soon as reasonably practical.
While the majority of employers are going out of their way to behave fairly even when faced with difficult choices, we have also seen a trend for some to treat departing employees unpleasantly and aggressively. In particular, we have seen a rise in allegations of gross misconduct being made by employers looking to avoid having to meet their contractual and statutory obligations.
In our experience, this can make an already difficult situation exceptionally stressful, and can have a severe impact on individuals’ mental health. Although fortunately rare, if you find yourself in this position you will need to make some important strategic decisions quickly, and you should obtain advice on your options.
We hope that you and those you love are safe and well. We recognise that the past few weeks have been incredibly stressful for everyone and it’s likely that we will only begin to appreciate quite how stressful when we get to look backwards in a few months’ time.
Part of that stress is down to the daily uncertainty, and while facing potential redundancy is particularly challenging at such a difficult time, we hope that having an understanding of your rights and options will provide some level of comfort and the opportunity to make informed decisions.
We tailor our support to your needs and are able to provide initial strategic advice via our fixed fee In Confidence service, advice on the terms and effect of employment settlement agreements (usually funded by your employer) and ongoing support for more complex matters. Please don’t hesitate to get in touch if we can help.